In a recent interview with Newsweek magazine, former CIA lawyer John Rizzo spoke with surprising candor about the CIA's "targeted killing" program. He discussed the scope of the program (about 30 people are on the "hit list" at any given time), the process by which the CIA selects its targets (Rizzo was "the one who signed off") and the methods the CIA uses to eliminate them ("The Predator is the weapon of choice, but it could also be someone putting a bullet in your head"). In a wide-ranging conversation, Rizzo volunteered details about a highly controversial counterterrorism program that had previously been cloaked in official secrecy.
What was most remarkable about the interview, though, was not what Rizzo said but that it was Rizzo who said it. For more than six years until his retirement in December 2009, Rizzo was the CIA's acting general counsel — the agency's chief lawyer. On his watch the CIA had sought to quash a Freedom of Information Act lawsuit by arguing that national security would be harmed irreparably if the CIA were to acknowledge any detail about the targeted killing program, even the program's mere existence.
Rizzo's disclosure was long overdue — the American public surely has a right to know that the assassination of terrorism suspects is now official government policy — but it reflects an opportunistic approach to allegedly sensitive information that has become the norm for senior government officials. Routinely, officials insist to courts that the nation's security will be compromised if certain facts are revealed but then supply those same facts to trusted reporters. Sometimes the motivation for the disclosure is political and sometimes it's personal, but in either case disclosure has little to do with the public's need (or right) to know and everything to do with the official's need to tell. Rizzo's interview with Newsweek was particularly brazen, because Rizzo allowed his statements to be attributed to him rather than to the now-familiar "highly placed intelligence official." But where the state's ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.
Examples are easy to find. After Congress enacted the Patriot Act, FBI officials swore to a court that national security would be compromised if the FBI revealed how many times it had used a particularly controversial surveillance power. But when then-Atty. Gen. John Ashcroft realized that he could use the statistic to discredit critics of the act, he volunteered the statistic at a press conference. Similarly, the CIA filed affidavits in various lawsuits insisting that national security would be compromised if the government officially acknowledged its network of secret prisons, but at a subsequent press conference President Bush did exactly that. In a suit involving the CIA's "extraordinary rendition" program, then-CIA Director Michael Hayden filed an affidavit asserting that the CIA could neither confirm nor deny allegations concerning clandestine interrogation techniques. But after disclosure became more politically palatable than continued concealment, Hayden confirmed publicly that three prisoners had been waterboarded in CIA custody.
In these instances, the government first insisted on secrecy and then later disclosed its putative secrets, but occasionally the chronology works the other way round. After the New York Times disclosed the existence of the National Security Agency's warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program's supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn't defend the program in court without disclosing information that was simply too sensitive to disclose.
It's hard to be upset that Rizzo spoke candidly to Newsweek. The public knows too little about the government's national security and counterterrorism policies, and without leaks we would know even less. But if senior executive branch officials believe that information can safely be shared with the press, they should not be asserting under oath — or allowing their subordinates to assert under oath — that the information is too sensitive to be released under the Freedom of Information Act, or too sensitive to be shared with federal judges.
Allowing government officials to eschew official information channels in favor of unofficial ones has real consequences. It's not just that officials can control what information is released to the public, and when, and in what contexts. They can also control which legal challenges get heard, because courts can't adjudicate challenges to government policies if they don't know what those policies are. When the executive branch strips the courts of information, it also strips them of authority.
The courts themselves are partly to blame. Although both the Constitution and the Freedom of Information Act invest the courts with the power to determine whether claimed state secrets are actually state secrets and whether classified information is properly classified, courts too often accept executive claims without scrutiny. And it is almost unheard of for courts to hold government officials to account for disclosing to the press information that they previously refused to disclose to the judiciary.
The judiciary's failure to exercise its authority in this area is corrosive. Our democracy depends on a judiciary that enforces the Constitution, an accountable executive and a public that knows the whole story, not just the facts that executive officials decide it's in their interest to disclose.
Jameel Jaffer is deputy legal director of the American Civil Liberties Union.