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Coleen Rowley

Former FBI agent Coleen Rowley was one of three whistleblowers chosen as persons of the year by TIME magazine in 2002

September 20th, 2011 7:04 PM

Secrecy Kills

With editing assistance from Hugh Iglarsh, writer/editor/citizen based in Chicago

These two words sum up well the op-ed I co-wrote with Bogdan Dzakovic before the ninth anniversary of the 2001 terrorist attacks last year, a shortened version of which was published later in the Los Angeles Times under the title: WikiLeaks and 9-11: What If?. There are so many reasons why and examples how secrecy hurts public safety; why it should be considered at best a necessary evil; why both civil rights advocates and security experts recognize that secrecy must be limited in both time and extent.

The truth about governmental secrecy is precisely contrary to the propaganda message of the last few years, especially since the advent of WikiLeaks and the Bush and Obama administrations’ renewed vigor in prosecuting government whistleblowers as a threat to security. We are constantly fed the Orwellian myth that governmental secrecy protects us. But the opposite is true: effective governance and public safety are simply not possible unless secrecy is kept to a bare minimum. 

Underlying Fundamental: Secrecy Enables Wrongdoing

The slide below is derived from the FBI’s “Law Enforcement Ethics” presentation that I and other Chief Division Counsels gave in all of the FBI’s 56 Field Divisions during the week before 9-11. (Ironically, this law enforcement ethics presentation was mandated to fulfill FBI Director Louis Freeh’s pledge to Congress that he would ensure that agents were better trained in ethics, as a result of an earlier scandal in late spring 2001. That particular FBI scandal stemmed from the disclosure that the FBI had failed to provide government prosecutors and defense attorneys with all the documents the agency had collected pertaining to Timothy McVeigh and the Oklahoma bombing case, just weeks before McVeigh’s scheduled execution. But I digress.)

The graphic depiction shows how the ethics line – defined as “doing right when there is no one to make you do it but yourself’ – is higher and above the criminal line, where behavior is conditioned by the likelihood of getting caught and punished. In showing this slide, I explain that there may be real costs, including lost profits, to operating at the higher line. The upshot is that many competitive and profit-driven people will go right down to the criminal line and even dip below it from time to time – shown by the squiggly red line – when they think they can get away with it. (Many examples are provided in the seminal book The Cheating Culture, by David Callahan.) If people think they can outfox law enforcement, or that a drug test won’t detect their cheating in a Tour de France lap or Olympic event, they are obviously more inclined to dip below the criminal line. It’s impossible to hire enough police or build enough prisons when a society abandons the ethical “self-policing” line and bets instead on secrecy to enable wrongdoing.

Transparency Is on the Side of Virtue: Taking the “Grandma Ethics Test”

To counter the attraction of secrecy and help young people better distinguish right from wrong, I advise them to choose their course of action while imagining their grandmother is looking over their shoulder. Adults are well advised to make their decisions based on how it would appear if publicized on the front page of a local newspaper. In like fashion, societies and governments require effective mechanisms for revealing and sharing truth with their citizens. Long ago, Edmund Burke realized the importance of the Fourth Estate – i.e., the press – in maintaining ethical boundaries and preventing tyranny.

To counter the power of underworld secrecy, law enforcement agencies have long asked for and relied on members of the public to use their eyes and ears to report crimes and fugitive criminals to the authorities. Beyond soliciting public tips, law enforcement also recruits informants and relies on cooperating witnesses and whistleblowers to penetrate criminal conspiracies, white-collar fraud schemes and corrupt government and political operations. After 9/11, the endless orange alerts and constant fear-mongering, ensured that information (mostly about Muslims and much of it vague and irrelevant) poured in from hundreds of thousands of citizen-tipsters who in the past would never have picked up the phone and reported to Big Brother. (Reporting on other types of crimes, however, have taken a back seat, as evidenced by the fact that suspicions about Bernie Madoff’s $65 billion Ponzi scheme, which had been voiced for years, were ignored until it was too late.)

Hypocrisy of Hypocrisy: Reducing Personal Privacy While Increasing Governmental Secrecy

With over 3,000 agencies and private contractors at work in Top Secret America,” all focusing on collecting massive amounts of data about individuals (the Washington Post reports that the National Security Agency alone vacuums up 1.7 billion e-mails, phone calls and other communications every 24 hours), little individual privacy remains. Since no threshold of suspicion or justification is required for much of this massive governmental data collection, the reams of data now stored in mega-“Black Widow”-type computers largely lack cogency. Donald Rumsfeld and other officials excused their many failures to connect the dots before 9-11 by saying that “intelligence was gushing like a fire hose and you can’t get a sip from a fire hose.” If “intelligence” was a fire hose before 9-11, it must now be Niagara Falls, and one wonders if Leon Panetta, Rumsfeld’s replacement, has learned how to sip from it. I have yet to hear the NSA mathematicians explain how, when you’re looking for a “terrorist” needle in a haystack, it helps to add more hay.

This is why no government agency connected the dots before Fort Hood shooter Nidal Malik Hasan killed 13 and wounded 30, flight passenger Umar Farouk Abdulmutallab tried to ignite his "underwear bomb" in the air over Detroit or Faisal Shahzad planted his car bomb in Times Square. Yet all of these terrorist events involved individuals in direct communication with the very same Yemeni cleric who was also connected to three of the 9/11 hijackers. In all three cases, people at the scene stopped the terrorist. (This great cartoon drawn by Ben Sargent says it all.) In short, there’s little reason to believe that enlarging the already glutted databases will make it easier to prevent terrorism (see How Top Secret America Misfires).

As personal privacy disappears down the maw of intelligence agencies, governmental secrecy is expanding in a variety of ways and on a variety of levels through over-classification, new barriers curtailing information-sharing (see OMB Orders Government Agencies to Monitor Disgruntled Employees -- What's Next?), more common use of “state secrets privilege” to shut down lawsuits, and the eruption of new turf battles occasioned by the proliferation of national security agencies with redundant, overlapping and competing missions. Since the Sept. 11, 2001, attacks, the secretive dark force Joint Special Operations Command (JSOC) has grown tenfold, conducting (illegal) assassination missions around the world “while sustaining a level of obscurity that not even the CIA managed.” WikiLeaks seems to have spawned a certain hysteria amongst US political leaders, who conflate whistleblowing with leaking and leaking with spying, leading to reversal of many of the civilian government and military information-sharing reforms put into place to fix the pre-9/11 problems.

Year after year, congressional session after session, no laws are passed offering any real whistleblower protection for the analysts and agents laboring in government intelligence agencies. (Most recently, ironically enough, the Senate placed a “secret hold” on such legislation after unanimous floor votes.) This tends to reinforce a culture of silence and secrecy. High-profile prosecutions of government whistleblowers like Thomas Drake intimidate government employees, preventing them from sharing first-hand, candid insights with superiors or reporting fraud, waste, abuse or illegality. The resulting bottleneck means that managers in Washington’s ivory towers are utterly isolated from operatives in the field and the vital but raw information they unearth.

Key 9-11 Bottlenecks Remain Unexplained a Decade Later  

When I wrote my May 2002 “whistleblower” memo about the FBI’s failure in the Moussaoui case, it led to a two-year investigation by the Department of Justice’s Inspector General (DOJ IG). It’s important to understand that the 9-11 Commission did next to nothing to unravel the key intelligence failures documented in their report. Instead, it relied on the work of prior official inquiries, the findings of the Joint Intelligence Committee Inquiry (JICI), the Senate Judiciary investigation and the DOJ IG investigation that my memo had instigated. Nearly a decade after the attacks, reporters are still punching big holes in the thoroughness of those investigations, showing that key documentary evidence and information was either glossed over or deliberately withheld. Government agencies’ nearly incomprehensible failures to share information with the official inquiries are still being exposed: see Link to 9/11 Hijackers Found in Sarasota: FBI Found Ties Between Hijackers and Saudis in Sarasota But Never Revealed the Findings” and Richard Clarke Alleges That Top CIA Officials Withheld Intel On 9/11 Hijackers In Cover-Up.

Recall that the DOJ IG investigation looked into three separate FBI debacles: the failure to share information and take action regarding al-Mihdhar and al-Hazmi, the Al Qaeda hijackers who had long been under CIA surveillance, were known to have entered California for over a year before 9-11, and were housed by an FBI informant; the “Phoenix Memo” warning of terrorist suspects in flight school; and the FBI HQ-botched Moussaoui investigation. With respect to the first debacle, allegations have persisted for some time that key FBI and CIA personnel were forbidden from telling the full truth about why the CIA did not share its information in a timely manner regarding the two terrorist suspects who entered California. Very recently, a 2009 interview has come out on this topic with Richard Clarke, Bush’s head counter-terrorism official known for his speaking out about Bush-Cheney’s single-minded focus on invading Iraq – a country without Al Qaeda connections – which was in place one day after 9/11. Clarke too, it seems, has been puzzled all these years, opining that the CIA’s failure to share key information with the FBI and with him and other White House officials is the most murky, surprising and still unexplained item. Clarke speculates the CIA may have been covering up a botched and improper (as it infringed on the FBI’s domestic jurisdiction) attempt to “flip” the two terrorist suspects in California, but to this day he admits that no one knows precisely why the CIA kept this information secret even from the FBI and White House security officials like himself. Clarke makes clear that sharing that key info would have enabled officials to prevent at least a major portion of the 9-11 attack.

Update: Newest “Terrible Missed Chance” Revelation Met With FBI Official’s Claim (AGAIN) of Simple FAILURE TO READ!

The prior IG, JICI, and Senate Judiciary investigations identified at least two major instances of FBI officials using as an excuse the jaw-dropping line, “I didn’t read the document.” Former FBI Section Chief David Frasca simply claimed he didn’t read the multi-page, well-documented “Phoenix Memo,” which was addressed to his attention and urgently and presciently requested that he launch an investigation of terrorist suspects in flight schools. Former FBI National Security Law Unit Chief Marion “Spike” Bowman eventually admitted that he didn’t bother to read Minneapolis Agent Harry Samit’s ill-fated draft declaration seeking a FISA (Foreign Intelligence Surveillance Act) search of Moussaoui’s belongings. The stated reasoning behind the rare refusal to request a FISA search in the Moussaoui case was said to be his lack of connection to a foreign terrorist organization. Bowman finally admitted he did not read the facts in Samit’s draft declaration for himself, instead relying on an FBI supervisor’s quick verbal briefing, even though Bowman was responsible for rendering the final decision. That terribly wrong decision went unchallenged by other FBI officials, even well after 9-11, and became one of the key points in my memo of May, 2002. Bowman’s decision that there was no probable cause for a FISA due to lack of connection to a foreign terrorist organization was eventually found to be completely wrong by the IG and 9-11 Commission, inasmuch as French intelligence reports incorporated into Agent Samit’s draft declaration showed Moussaoui to be connected to a Chechen foreign terrorist group and its leader Ibn Khattab.

Even on its own, the Chechen connection would have satisfied the FISA standard. But there’s more. A memo entitled “Bin Laden/Ibn Khattab Threat Reporting,” written in April 2001 to FBI Director Louis Freeh by an assistant director and copied to eight other high-level FBI leaders, was just unearthed from the Moussaoui trove of court exhibits by Newsweek reporter Philip Shenon, author of the book, The Commission. It shows the FBI itself circulated a warning about Khattab and Bin Laden five months beforehand:

“The U.S. Government has received information indicating that serious operational planning has been underway since late 2000, with an intended culmination in late Spring 2001. These plans are being undertaken by Sunni extremists with links to Ibn al Khattab, an extremist leader in Chechnya, and to Usama Bin Laden. There are several planning channels, some with connections to Afghanistan, all within a large shared mujahideen recruitment network…. All the players are heavily intertwined.”  

It gets even worse. Shenon’s recent (Sept. 4) article, "The Terrible Missed Chance,” details how one of the eight senior officials at the FBI copied on this April 2001 memo was Michael Rolince, who oversaw the work of Frasca and Maltbie, the other FBI supervisor who denied Minneapolis FBI’s request. Rolince blithely dismissed any blame for the botching of the Moussaoui case, explaining that he received only a cursory 20-second briefing on the case before 9-11, even though he was an important liaison with the White House on terrorist threats during the summer of 2001. Rolince also claims he didn’t see the memo with his name on it linking the Chechens and their leader Ibn Khattab to Osama bin Laden. Not having read the key memo, Rolince naturally didn’t forward it to Frasca or Maltbie.  

Simple Questions about Potential Simple Fixes for Improving Information-sharing

Just looking at the FBI’s performance (and the failures in the CIA, NSA and other intelligence agencies may have been far worse), one might get the idea that the problem of failing to share and even read information is easy to fix. Instead of bankrupting ourselves and killing hundreds of thousands of innocent people by launching a pre-emptive, worldwide “war on terror,” instead of doing away with the Geneva Conventions and allowing US covert agents to conduct extraordinary renditions, torture and assassinations, instead of US citizens sacrificing many of their constitutional rights so that government is free to conduct warrantless monitoring and other massive data collections on US citizens, why not simply mandate that government officials read the intelligence sent to them, especially when a decision or action is requested? We could avoid many of these claims of ignorance simply by requiring officials to sign off on documents. (And we should give J. Edgar Hoover credit here for his rule about initialing off on communications.) How about no longer relying on verbal hearsay when written legal affidavits or draft declarations exist? How about, instead of doubling or tripling the national security-surveillance bureaucracy to its present “Top Secret America” massiveness, reducing the links in the chain of command to improve information-sharing? Intelligence gathering now is like the kindergarten “whisper” game, where messages get distorted as they move around the circle. Isn’t it time to try the simple fixes that address the actual failures?

Increasing Governmental Secrecy = Decreasing Governmental Accountability

The reason why the simple solutions to so many of the pre 9-11 failures were not tried comes back to governmental secrecy. Cover-ups ensued immediately after the attacks. No one readily admitted his or her mistakes, especially those in the Bush-Cheney administration at the top of the debacle. The Bush Administration fought tooth and nail against the creation and investigative actions (what few there were) of the 9-11 Commission at every juncture, to the point where the leaders of the Commission now admit “it was set up to fail.”

Recall that Bush-Cheney et al had effectively removed themselves from the scope of the JICI. They allowed agency subordinates to thumb their nose at the 9-11 investigators and helped obfuscate the failures of intelligence officials, especially of Director of Central Intelligence George Tenet, probably in exchange for Tenet’s tacit promise to go along with Bush’s post 9-11 launching of war on Iraq and Cheney’s directive to go to the “dark side” and commit torture. It took almost three years for the 9-11 Commission Report to come out with its bit of truth about the security lapses (found by the JICI, IG and Senate Judiciary), which are documented in Chapter 8 of the report, titled “The System Was Blinking Red.” Ten years later, we learn the Commission either was not told of or ignored key documents, including the April 2001 FBI Memo to Freeh. None of the official inquiries was ever able to learn why CIA officials told no one about two assumed terrorists they were tracking who were living in California.

According to Dana Priest and William M. Arkin in their recent book Top Secret America, “The government has still not engaged the American people in an honest conversation about terrorism and the appropriate U.S. response to it.”

Certainly, it’s embarrassing to come clean and admit terrible failures like 9/11, to admit that it was used as a false pretext for launching illegal wars and war crimes. But cover-ups are the natural result of the government’s grossly excessive secrecy. From an ethical and pragmatic standpoint, however, cover-ups only magnify the original problem or mistake. Just ask the Catholic hierarchy about how the priest-pedophile scandal mushroomed over the decades after it was decided that priests’ wrongdoing must be covered up.

“The Ethics of Excellence” by Price Pritchett notes that “Everybody makes honest mistakes, but there’s no such thing as an honest cover-up.… People commit an ethical violation in an effort to cover their tracks. The result proves that ethical violations are self-reproducing. They feed on themselves. The idea of hiding mistakes is seductive, and the carrot of the cover-up dangles as an appealing solution. But the best approach is to level with others, to go public with what was done wrong.”

Secrecy Indeed Kills

The ubiquitous question at the end of nearly every interview about 9/11 is, “Are we safer now?” And I’ve yet to hear an answer from any talking head, at least on US airwaves, that is other than subjective opinion entirely pulled from the air. Usually that airy expert opinion is provided for political reasons, to keep Americans optimistic that the hundreds of thousands of people killed and 4 to 5 trillion dollars spent thus far is working to keep Americans “safe.” Very few experts want to tell the harsh truth that this last decade has seen a precipitous increase in the level of both terrorist attacks worldwide and fatalities occurring from these attacks. But behind the barrage of talking head propaganda, the hard statistics and figures show that terrorism has increased approximately 20-fold over the last decade.

Remember in 2004 when Colin Powell’s State Department was caught (twice) putting out wrong figures in its annual “Patterns of Global Terrorism” Report after they held press conferences falsely pointing to progress in reducing terrorist attacks? The State Department Report had been legally mandated for many years to be presented in April of each year to Congress but in 2004, terrorism scholars quickly spotted serious under-reporting. The department was forced to withdraw the report and admit that its initial version vastly understated the level of worldwide terrorism and that nearly double the number of people had been killed in 2003 as originally reported. In the course of compiling the following year’s report (terrorism attacks that occurred during 2004), the Washington Post discovered that government analysts determined that attacks had gone up once again -- three times more, in fact, to a high of 651 attacks that resulted in 1,907 deaths. Rather than publish that information, the State Department decided to strip the annual terrorism report of the numbers and rename it “Country Reports on Terrorism”. The more obfuscating and US-centric “Country Reports” focuses on terrorism by region and how each country is cooperating with US efforts. But faced with an outcry once the redacted statistics showing a surge in terrorism in 2004 leaked out, the National Counterterrorism Center (NCTC) was forced to release the figures, the highest ever in its 21 year history.

The Washington Post reported that “President Bush, quizzed on the apparent upsurge of global terrorism at his prime-time news conference Thursday, attributed the increase to aggressive U.S. action. "We've made the decision to defeat the terrorists abroad so we don't have to face them here at home," he said. "And when you engage the terrorists abroad, it causes activity and action."

A statistical annex prepared by the NCTC is now to be found near the end of each year’s “Country Reports” that provides the all-important numbers. The Bush Administration frowned on comparisons (and probably the Obama Administration does too) but these numbers are relevant for purposes of comparison with pre 9-11 figures. From 1995 to 2000, the old annual global terrorism report showed fluctuation between 273 and 440 terrorist acts and between 165 and 741 people killed each year. (The 741 deaths occurred in 1998, the year of the bombings of two US embassies in Africa.) By contrast, the most recent “Country Reports” which came out in August 2011, reflecting figures for 2010, show more than 11,500 terrorist attacks occurred in 72 countries resulting in more than 13,200 deaths. (The number of attacks in 2010 rose by 5% from the previous year, with the only good news being that the number of deaths declined for a 3rd consecutive year. From 2007 to 2010, attacks world wide fluctuated from about 11,000 to over 14,000, killing people in numbers ranging from last year’s 13,200 to nearly 23,000 in 2007.)

These huge increases in the level of international terrorism world-wide, do not count the “collateral damage” civilian casualties occurring in the US wars nor do they count “domestic terrorism” incidents (like the mass shooting in Norway or the shooting of Congresswoman Giffords and people next to her).

Beyond the quantification of attacks and deaths, which provide a resounding “No!” to the question of whether we are safer, there exist other quantifiable measures, most importantly those from University of Chicago Professor Robert Pape, head of the “Chicago Project” and perhaps the world’s foremost expert on suicide terrorism. In the The Truth Behind Suicide Terrorism monograph, Pape shows that they don’t “hate us because of our freedom,” but suicide terrorism is instead caused by the presence of US armies. Pape’s now well-understood fact that suicide terrorism occurs in response to our invasions and long-term occupations is augmented by his reflections on “America’s massive decline in power” since 9-11:

“A nation’s relative power is based on its economic wealth compared to the rest of the world. In 2000, the U.S. controlled 31 percent of the world economy; in 2008, that figure had fallen to 23 percent and, according to the International Monetary Fund, the projection for 2013 is 21 percent. In the past eight years, the United States has lost one-third of its economic wealth or, put another way, since 2000, the U.S. has lost nearly a third of its relative power in international politics while China’s has doubled and Russia’s has tripled. This decline represents the largest drop in the history books, Pape says. Our international decline was well under way before the economic downturn of 2008, which is likely to further weaken our influence. The Iraq war, growing government debt and myriad unwise decisions resulting in economic weakness have cost the U.S. real power in today’s world. ‘If present trends continue, we will look back at the previous administration's term as the death knell of American domination,” he predicts.’”

For all of the above reasons and more, it’s clear that secrecy kills. At this point, let me repeat the points that Bogdan and I made last year at this time, in Could WikiLeaks Have Helped Thwart 9/11?

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”
- Lord Acton

As mentioned above, Bogdan Dzakovic and I co-wrote an op-ed titled “WikiLeaks and 9/11: What if?” for the Los Angeles Times about the issue of governmental secrecy. We had originally written a much longer, more complete version in connection with the 9/11 anniversary. There’s hardly room in newsprint, however, to clearly explain a complex situation or fully argue a point, especially when the contention seems counterintuitive. As our longer version would have answered many of the questions and criticisms that were posted about our op-ed, I thought it would be worthwhile to publish the original version, which appear below.??The discussion about secrecy is quite relevant given huge breaking news about WikiLeaks, both good and bad, including that its online fundraising mechanisms have been cut off, that the site may soon post 400,000 Iraq War intelligence reports, that WL founder Julian Assange has recently been denied a residence permit in Sweden and that the Pentagon's team of 120 analysts has thus far been unable to identify any actual physical harm that has befallen any Afghan civilians or US troops as a result of WL’s making public the Afghanistan war documents, despite the harsh warnings of Defense Secretary Gates and Admiral Mullen. (See How Propaganda Is Disseminated: WikiLeaks Edition)

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