The government's collection of phone records remained secret for 12 years before the leaking of NSA documents by Edward Snowden, shown here during a video interview in March.
This book review appears in the Fall 2015 issue of The American Prospect magazine. Subscribe here.
By Fredrick A.O. Schwartz Jr.
368 pp. The New Press $27.95
By Michael Schudson
368 pp. Harvard University Press $29.95
The next president, whether Republican or Democrat, will inherit an unsettled and acrimonious debate about government secrecy. The debate was inflamed by President George W. Bush’s secret detention of terrorist suspects and warrantless surveillance of Americans and citizens of other countries. Far from putting the controversy to rest, President Barack Obama has only deepened it as he has expanded the use of armed drones and introduced offensive cyber weapons, altering the dynamics of international conflicts without any public debate.
Two important new books reach starkly different conclusions about whether the United States remains caught in an era of ever-increasing secrecy or has been transformed by a culture of openness. Frederick A. O. Schwarz Jr. argues that the nation remains in a Secrecy Era (his caps) in which officials make decisions behind closed doors without even thinking about the benefits of public discussion. Excessive secrecy, motivated by long-standing bureaucratic incentives and intensified by fear of communism and terrorism, has turned America into a “democracy in the dark.”
Michael Schudson, in contrast, chronicles the emergence of sunlight. He documents the creation of a culture of openness between 1945 and 1975 that has made government and business so much more accountable that it has changed the character of American democracy. A better-educated, more critical public produced reformers in Congress, inquisitive civic advocates, skeptical journalists writing for knowledgeable audiences, and demanding consumers.
Both authors write with authority. Schwarz, chief counsel of the Brennan Center for Justice at New York University School of Law, worked as a partner in a prestigious New York law firm, as chief counsel to a Senate committee chaired by Idaho Democrat Frank Church that investigated intelligence agencies’ abuses during the 1970s, and then as New York City’s corporation counsel under Mayor Ed Koch. Schudson, a professor of journalism at Columbia University, is a sociologist who has written widely about popular culture and the evolution of American media. Both build on the sturdy foundation laid by Senator Daniel Patrick Moynihan in his studies of the role of secrecy and openness in American democracy, both in the 1997 report of the Senate commission on government secrecy, which he chaired, and in Secrecy: The American Experience, the book published a year later.
Schwarz’s scope is limited. His subject is the national-security secrecy that, he argues, overwhelmed America’s traditional culture of openness after World War II and gradually produced a vast and permanent bureaucracy. To bolster his argument, he provides carefully researched, engagingly written stories of government secrecy gone amiss. Secrecy limited debate about whether to drop the first atomic bomb on a Japanese city or on a military target in 1945, after a test showed that its explosive force was much greater than officials expected. Secrecy hid President John F. Kennedy’s deal with Soviet leaders to end the Cuban missile crisis by removing U.S. missiles from a Turkish base near the Russian border, deceiving a generation of foreign policy experts as well as the American public. Schwarz’s accounts of the excessive secrecy of intelligence budgets, sensitive scientific and technological advances, and presidential records make fascinating reading. His criticism of the secret policies of President George W. Bush and Vice President Richard Cheney is more strident. He calls Cheney a master manipulator of information in an administration where “monarchical powers bested democratic persuasion.”
I found the stories Schwarz tells from his own experience as chief counsel of the Church Committee in 1975 and 1976 particularly enlightening. An extraordinary moment in American politics triggered a broad investigation that led to significant limitations on official secrecy. A series of developments—official deception surrounding the Vietnam War, President Richard Nixon’s resignation after revelations about his secret abuses of power, stolen FBI documents, a CIA director’s demand for an accounting of illegal activities, and Seymour Hersh’s investigative reporting on domestic spying—produced bipartisan support for a remarkable accounting of intelligence abuses.
The committee revealed CIA participation in plots to assassinate foreign leaders, decades of freelance spying and misinformation campaigns by J. Edgar Hoover’s FBI, and a long history of secret monitoring of international telegrams by the National Security Agency (NSA). As a result, Congress and Presidents Gerald Ford and Jimmy Carter restricted FBI eavesdropping to criminal investigations and required warrants from a new intelligence court for domestic surveillance. These measures underscored earlier bans on domestic spying by the NSA and covert actions without specific approval by the president, as well as assassinations. Schwarz adds a thoughtful essay on the anatomy of effective investigations of abuses, studded with examples of inquiries that fell short.
What I find missing from this thoughtful book is an account of the nation’s progress toward holding presidents and their intelligence agencies accountable for their actions. Thanks in part to the Church Committee’s investigation and the durable reforms that followed, we no longer have the unfettered government secrecy that characterized much of the Cold War. The picture is mixed. While the years since 2001 have witnessed an expansion of national-security secrets, they have also featured remarkable checks on executive authority. During the Bush administration, concerned officials in intelligence agencies and the Justice Department reminded the president about the legal limits of their authority just weeks after the September 11 terrorist attacks. Agency inspectors general investigated the roundup of Muslim men, and Bush’s programs of secret detention, interrogation, and domestic surveillance. Journalists, bloggers, and insiders with cell-phone cameras pieced together portions of the story. The courts and Congress acted relatively quickly to question, debate, and limit some of the administration’s actions. The Supreme Court ruled that the president could not unilaterally create new military commissions, decree interrogation methods that ignored the law, or deprive prisoners of their right to challenge their incarceration. As Justice Sandra Day O’Connor wrote: “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens.”
The strength of these limits on the president remains uncertain. They did not deter two presidents from secretly approving the collection of Americans’ phone records, a practice that remained hidden for 12 years until Edward Snowden, a government contractor, leaked thousands of classified NSA documents to the press. The ensuing debate generated constructive ideas to allow searches for terrorist networks while minimizing privacy intrusions, and in June Congress enacted limits on bulk collection of telephone metadata. But the problems of secrecy and security have hardly been put to rest. In July, as the Obama administration began developing an insider-threat program to block future leaks like Snowden’s, federal officials disclosed that hackers perhaps linked to China stole the personnel records of more than 20 million current and former government employees and applicants.
The early Cold War decades did not only leave a legacy of heightened secrecy in the national-security arena. Michael Schudson makes a convincing argument that during exactly the same period, an unprecedented culture of government openness emerged primarily in domestic institutions. Schudson recounts in detail how the public gained the right of access to government documents; to agencies’ predictions of the environmental consequences of their actions; to basic information about processed foods; and to the deliberations and individual votes of Congress. Thanks to Schudson’s own research and reporting, each of these accounts features an unexpected cast of characters, and each shows how big changes can begin with the actions of a few impassioned individuals.
The public’s right to examine government documents, for example, resulted from more than a decade of efforts led by John Moss, an unassuming and tenacious member of Congress from California’s Central Valley. Newly elected in 1953, Moss became incensed at the secrecy of President Harry Truman’s loyalty investigations of federal employees, which President Dwight Eisenhower expanded. He hammered away at the absurdities of government secrecy in dozens of hearings and forged a critical alliance with leading newspaper editors. When the politics of the moment finally aligned with a decade of hard work in 1966, President Lyndon Johnson, who had his own reasons for keeping secrets, forced a compromise that weakened Moss’s legislation. Nonetheless, Congress approved the Freedom of Information Act overwhelmingly, with the help of a young representative from Illinois, Donald Rumsfeld, who co-sponsored the bill and rounded up Republican votes.
Likewise, a little-known Senate staffer, Lynton Caldwell, worked for years to provide a mechanism that would require agencies to consider and publicize the environmental consequences of their proposed actions. And consumer advocate Esther Peterson worked for years for the government and then for a progressive grocery-store chain, Giant Food, to inform consumers about the freshness, ingredients, and comparative pricing of packaged foods.
Schudson was surprised, and so was I, to find that these “right-to-know” initiatives began in the 1940s and 1950s, when fear of communism and Soviet atomic power preoccupied the nation, rather than during the 1960s, the decade more often associated with social activism. Reformers even borrowed Cold War rhetoric in accusing executive agencies of constructing a “paper curtain” to block public access and charging that companies were withholding essential information about food that consumers needed in a modern, free-market economy.
The media’s growing skepticism about government credibility, according to Schudson, also dates from those early postwar years, when reporters had trouble prying information out of powerful agencies, and when dissembling after incidents such as the 1960 crash of a U-2 spy plane in Soviet territory showed that officials could not always be trusted. But growing skepticism did not trigger a momentous increase in investigative reporting, which remained difficult and costly. Instead, Schudson’s own research shows, the biggest change in the character of newspaper stories was the emergence of interpretive reporting that tells “the story behind the story.”
Schudson concludes that an increasingly educated public schooled in critical thinking has helped expand civic engagement, polling, audits and inspections, and the many forms of media vigilance. These changes, in turn, have produced a fundamental shift in accountability in American government, from a reliance on the checks and balances provided by the president, Congress, and the courts to what Schudson calls a publicly monitored democracy, or “monitory democracy.”
These two books, then, are not as much in conflict as they first appear. Often, openness has been a reaction against excessive secrecy. Congress’s early “right to know” initiatives were triggered in part by frustration with Truman’s expansive national-security secrecy. National-security policy, in turn, has been influenced by the many forms of accountability that Schudson describes, including internal audits, civic watchdogs, and media scrutiny.
Experience has taught that no law can keep a president from deceiving the public, or from ignoring the Constitution’s edicts. Presidents are more often held accountable these days, but accountability usually occurs after some of the damage has been done. As the 2016 elections approach, all presidential candidates will promise openness. Perhaps the cadres of public monitors Schudson describes will find ways to dig beneath that rhetoric in order to examine their track records. How willing have they been to share with constituents their most difficult choices or come clean about embarrassing mistakes? How patient have they been with opposing views and angry protesters? How well have they made decisions in crises, respected confidences, and protected their constituents’ privacy? To prevent deception and abuse, we ultimately have no choice but to rely on the American voter.