How decades of “cover your ass” culture lets the government hide its torture record
It all started with a 1948 plane crash.
As President Obama admitted in 2014, it looks like “we tortured some folks.” Of course, how and to what extent remains somewhat of a mystery. The Senate Torture Report, (officially called The Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, if you’re not into the whole brevity thing) took five years and nearly $40 million to complete. In other words, it’s an exhaustive account of the brutal and often counterproductive methods America’s most notorious intelligence agency used to extract information from detainees over the past decade. It also remains mostly classified. A heavily redacted 525-page version was released by the Senate and in 2014, leaving 90% of the original document hidden behind classified status.
As Roll Call writes, the entire situation poses a “challenge to the U.S. state secrets doctrine that has made it so hard for lawyers to bring cases on behalf of torture victims. The United States government has used that doctrine to claim litigation could harm national security. U.S. courts have agreed with the government argument.” But it appears the government is using legal and bureaucratic technicalities to “CYA” (cover your ass), as they say, and avoid legal repercussions. If they are, it certainly wouldn’t be the first time.
Three Air Force contractors were killed in 1948 when the B-29 Superfortress they were in crashed just outside of Waycross, Georgia. Their widows turned to the court to seek not only damages, but also a full accident report. They didn’t just want to be bought off. They wanted to know why their husbands died.
Unfortunately for the widows, this was the dawn of the Cold War and the powers of the “military-industrial complex” were expanding. A key component of those powers was the right to invoke state secrets with little to no judicial oversight, which is exactly what the Air Force did with the accident reports, claiming that they contained sensitive material that shouldn’t be exposed to the public. The case made its way to the Supreme Court, which ruled in favor of the Air Force’s right to “withhold information in their custody, if it is in the public interest to do so.”
The documents were eventually declassified and, as This American Life reported in 2009, there was absolutely no secret material in them. What did come to light though was that the particular plane that crashed, a B-29 Stratofortress, was notorious for its four wing-mounted engines overheating. Five days before the crash, the plane had been designated “red cross”, or unfit to fly. Regardless, a squadron commander signed something called an “exceptional release”, allowing the plane to fly.
This was the bedrock “cover your ass” case that paved the way for the abuse of “state secret” privilege to the present. As historian Garry Wills wrote in Bomb Power, the legacy of United States v. Reynolds “lives on, in all the cases where evidence is denied a court.”
The most infamous Cold War-era invocation of “state secrets” were the Pentagon Papers, a secret Department of Defense history of the war in Vietnam that contained, among other things, evidence that President Johnson had systematically lied to the American public about the American role in Vietnam. Daniel Ellsberg, who leaked the papers to the New York Times in 1971, was persecuted by Nixon’s staff for his efforts. Solicitor General Erwin Griswold later said the Pentagon Papers posed “no trace of a threat to national security”, and instead was a case of “massive overclassification”.
The legal and political framework that makes state secret CYA possible was birthed during the Cold War, but with the Global War on Terror the practice ballooned. According to John Dean, from 1953 to 1976 the state secrets privilege was invoked in only four cases, but by 2006 President George W. Bush had invoked the privilege 23 times. In one of the most odious cases, the privilege was invoked twice against FBI agent Sibel Edmonds to keep her from testifying that the government had foreknowledge of Al-Qaeda planning the 9/11 attacks.
President Obama inherited many of these cases when he took office. By doing things like shutting down private lawsuits and keeping students from knowing why they were placed on the “no-fly” list, he seems just as eager to inappropriately invoke the privilege as Bush did, despite having paid lip service to great DOJ accountability while on the campaign trail in 2008.
The ACLU has been trying for years to get the full torture report released, but to no avail. After repeated Freedom of Information Act refusals, the case was brought to court where a ruling was found against the ACLU. Oddly enough, the ruling stated that if the full report did in fact contain evidence of crimes committed by the CIA, that actually serves “to confirm, rather than undermine” the argument for the document’s privileged status.
But it gets weirder. The ACLU has recently filed another suit, this time on behalf of the victims against the psychologists who administered the CIA’s torture regimen. The full, un-redacted report would certainly be useful in prosecuting the case (or, let’s be generous, defending it), but the document currently exists in a weird legal limbo status. Because of an obscure 2014 law, the National Archives and Records Administration has the power to declare documents “federal records.” But the Department of Justice has advised the NARA office to not declare the status of the torture report. Because of that, the un-redacted torture report is impervious to FOI requests. Even government employees who have a high-level security clearance aren’t allowed to view it.
Who knows, maybe the Senate’s torture report does contain sensitive information. The problem is, there doesn’t yet exist a mechanism to ensure that both the security needs of the state, and the openness that democracy requires, are balanced equally against each other. And with potential reforms such as the State Secrets Protection Act languishing in legislative purgatory, it doesn’t seem like there will be a solution any time soon.
