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Wednesday, February 05, 2020

Delayed executive transparency and political accountability

John Bolton may not be testifying during the Trump Senate trial, but eventually his manuscript, partial leaks of which have already been shared with the Press, will see the light of day, even if after a potentially prolonged (post November 3, 2020?) prior restraint of pre-publication review. As the Just Security blog noted, Republican senators voting to acquit on the basis of factual, rather than legal, deficiency will have to eventually contend with the Bolton’s manuscript disclosure and other subsequent factual developments.

The leaks of the general content of Bolton's book were timely and placed senators on notice that important additional evidence concerning the conduct of our foreign policy was missing that could have been sought. Too often, however, delayed disclosure is the rule, thwarting political accountability for bad actors, leaving only hortatory cautionary tales to be learned from past governance missteps.

Consider a few spectacular delayed disclosures in the use of force context (which I've written about elsewhere) that, had they occurred earlier, could have changed public discourse and perhaps the direction of policy by calling into question the amount of deference paid to the executive branch.

  1. Operation Northwoods. In March 1962, almost a year after the failed April 1961 Bay of Pigs Operation but 7 months prior to the October 1962 Cuban Missile Crisis, the U.S. Department of Defense personnel presented scenarios ("pretexts") to the Secretary of Defense and eventually the President, intended to trick the American public into supporting a war against Cuba. The memorandum disclosing the planning is notable for the explicitness of its object: “It is recognized that any action which becomes pretext for US military intervention in Cuba will lead to a political decision which then would lead to military action.” The pretexts included, inter alia, "develop[ing] a Communist Cuban terror campaign in the Miami area, in other Florida cities and even in Washington," sinking boatloads of Cuban refugees headed to Florida "(real or simulated)," and hijacking civilian aircraft, all while pinning the blame on Castro's Cuba. See the annex to the appendix to enclosure A (pages 9-11 of the PDF). This plotting was conspiracy, but it wasn't merely "theory." It's well documented and became available as a result of the 1992 John F. Kennedy Assassination Records Collection Act, the Act's Assassination Records Review Board, and the efforts of James Bamford. It, however, was many years too late to hold anyone accountable. General Lyman Lemnitzer, who was Chairman of the Joint Chiefs of Staff, was subsequently appointed to leadership in NATO and even a commission designed to investigate CIA abuse of power. NB: The documents are authentic; I copied them while at the National Archives II, College Park Maryland facility.
  2. Saudi involvement with al-Qaeda and 9/11. Soon after 9/11, the FBI during the George W. Bush administration developed credible intelligence that an element of the Saudi government was a sovereign sponsor of the attacks. Some of that intelligence was collected by the Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, and reported in December 2002 in part 4 of the report, what have been called the "28pages." The Bush administration promptly classified these pages, which were only declassified near the end of the Obama administration. The Obama administration denied the records were evidence of Saudi complicity, but subsequent development of the factual record by Lloyd's of London in its SDNY reinsurance litigation in the 9/11 MDL as well as further government disclosure, cast substantial doubt on those denials. Under the Bush doctrine, where “any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime,” Saudi Arabia was far more connected with 9/11 than was, say, Iraq. Nonetheless, delayed disclosure favors the received narrative that non-state actor al-Qaeda carried out its terror operation on its own while dismissing later credible evidence of state sponsorship as mere "conspiracy theory."
  3. The Afghanistan Papers. As recently reported by the Washington Post, George Washington University's National Security Archive (the Archive) brought a FOIA action for U.S. Department of Defense records relating to the prosecution of the war in Afghanistan. The Archive's lawsuit sought Rumsfeld's early 2000s "snowflakes" memos as well as records generated by the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR), which interviewed U.S. personnel and NATO allies to develop a series of "Lessons Learned" reports. The secret history critically appraised the prosecution of the war. The mission kept changing; there was a failure to clearly define who the enemy was; money was wastefully spent without good justification; and massive scale corruption ran amok in country and undermined the government's stability.

Competing values, such as security and maintaining the confidentiality of deliberation, prize nondisclosure over political accountability. But one eventually has to ask at what point have we actually sacrificed security and robust deliberation through secrecy that evades political ventilation? The fog of war is not lifted when we are overly deferential to executive claims of privilege and confidentiality.

 

Posted by T. Samahon on February 5, 2020 at 10:47 AM in Constitutional thoughts | Permalink

Comments

El Roam, I was so proud of you! Only ONE (1) comment to start off with.

But then you started spamming the comment section again.

Either way, I consider it progress.

Well done!

Posted by: thegreatdisappointment | Feb 6, 2020 6:26:39 PM

One may find then, great interest here in that ruling, titled:

"Federal judge orders release of grand jury materials in Pentagon Papers case"

https://www.jurist.org/news/2020/02/federal-judge-orders-release-of-grand-jury-materials-in-pentagon-papers-case/

Posted by: El roam | Feb 6, 2020 5:36:01 PM

Just quoting:

P.J. Crowley, the State Department spokesman when the WikiLeaks story erupted in 2010, said those most at risk were civilians in Afghanistan and Iraq who were secretly passing information to the U.S. military.

"A number of people went into hiding, a number of people had to move, particularly those civilians in war zones who had told U.S. soldiers about movements of the Taliban and al-Qaida," he said. "No doubt some of those people were harmed when their identities were compromised."

Here:

https://www.npr.org/2019/04/12/712659290/how-much-did-wikileaks-damage-u-s-national-security

Posted by: El roam | Feb 6, 2020 2:34:39 PM

Samahon, you can read here for example, about Julian assange, and extradition to the US:

http://opiniojuris.org/2016/03/01/united-nations-working-group-on-arbitrary-detention-decision-on-assange-the-balanced-view/

Thanks

Posted by: El roam | Feb 6, 2020 2:19:33 PM

T.Samahon, yes, it is preferable not once, sooner than later. What I have been saying, is that in that era of distributive media, things have changed. Suppose Trump and the impeachment:

Whatsoever, public had access to authentic documentation, and even classified ones. It didn't change much. The rating or approval of Trump,hasn't been really changed due to it ( some would even argue, the contrary).

And not to forget, disclosing later, has reasons, and sometimes justified:

Many times, the issue is not really clear. Too hasty is the disclosure, and one may sow panic.Other reasons have to do with motives. It may seem, as if narrow political motive, generated the disclosure, causing suspicions, and hurt of public trust. Many times, national security of course, it may disclose, operational secrets ( like methods of surveillance, informants, and alike).In fact, the US, was seeking the prosecution of Julian assange for every cost almost, because of linking the identities of informants or secret service agents, and risking their lives.

Thanks

Posted by: El roam | Feb 6, 2020 2:13:16 PM

@ El roam: I don't doubt that once disclosed information can be put to all sorts of ends, fairly or unfairly. That happens with timely and untimely disclosures. The question is, holding all else constant, whether we aren't better off with more information sooner than later, which then allows us to act sooner to revise policies or sanction officials who abuse the public trust.

Posted by: T. Samahon | Feb 6, 2020 1:02:49 PM

El roam, Regarding sexual scandal and lust, in all cases, among all people, regardless of one’s beliefs, desires, inclinations, orientation, acts of depravity are always a perversion of authentic Love, for authentic Life-affirming and Life-sustaining Love, is always rightly ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love, which is why a man is not Called to Love his wife, in the same manner as he Loves his daughter, or his son, or his mother, or his father, or a friend. Love, which is always rightly ordered is devoid of every form of lust. Acts of depravity, in all cases, amongst all people, are a perversion of Love, and thus, in all cases, amongst all people, acts of depravity, are devoid of Love.

No doubt, there is a difference between Classical Liberalism and it’s counterfeit Progressive Relativism, which has everything to do with the denial of the Sanctity of the marital act within The Sacrament of Holy Matrimony and thus the denial of The Sanctity of all human life from the moment of conception, when every human person Is Created In The Image and Likeness of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, worthy of Redemption.

Classical Liberalism recognizes that God Is The Author Of Love, Of Life, And Of Marriage, whereas atheistic materialism’s destiny is the objectification of the human person.

“When God Is denied, human dignity disappears.” - Pope Benedict XVI

Such are the signs of the ConflictingTimes we live in. Pole dancing promoted by the NFL and # MeToo.

Posted by: N.D. | Feb 6, 2020 11:42:27 AM

Very interesting one, presenting important and fundamental issue. Yet, not to forget, the " follow up " impact ( suppose like publication from the book of Bolton to come, after being acquitted by Senate) is not always such great deal. Why ? Not only time that has past, but:

We live in very bizarre era of distributive media ( like internet). Many groups, build their own narrative, while relying upon genuine, actual, authentic documentation ( in real time terms almost, as erupting). So:

It is not always, that from scratch, out of nowhere, something shocking erupt like in the past, and agitate the public opinion. There is that immunity element, of, endless discussions, endless digging, narratives and counter narratives, all this, is causing sort of obliviousness among many groups, confusing the real ones.

For, example, here that affair of Stormy Daniels at the time ( concerning Trump simply). Well, pretty shocking one may argue, yet, already forgotten almost, long time ago ( relatively, and even appears as title in Wikipedia ). Here:

" Stormy Daniels–Donald Trump scandal "

https://en.wikipedia.org/wiki/Stormy_Daniels–Donald_Trump_scandal

And this is not the only illustration.

Thanks

Posted by: El roam | Feb 5, 2020 1:08:36 PM

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