Read an Excerpt

1
Silent Encroachments


The greatest threat to liberty, warned the nation’s Founding Fathers, comes not from abroad, but from within, and advances slowly, under cover of secrecy. “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations,” warned James Madison, a framer of the Bill of Rights.

Today his words seem prescient. What was once unthinkable—what would have been resisted as an intolerable affront to democracy and American values if it had befallen us all of a sudden—is now routine, a way of life.

As I finish the first draft of my study of secrecy, I scan the day’s news. It is Thursday, February 2, 2006. There are no portentous headlines. As news days go, this one is seemingly unremarkable, which may just be the most remarkable thing about it. If nothing else, this day provides a snapshot of a nation slipping further into the shadow of secrecy, conducting its affairs beyond public scrutiny, and not just at the White House or in Congress, but across a wide swath of American life—in city councils, corporations, courts, clinics, universities. Secrecy has engulfed them all.

Today the Justice Department resisted calls from members of the Senate Judiciary Committee to turn over legal memoranda that are said to offer the legal justification for President Bush's domestic surveillance program, the one that went forward in secrecy without warrants or recourse to the courts, as required under the Foreign Intelligence Surveillance Act of 1978. The president insists that the secret surveillance within America was perfectly legal. But the legal memos said to support that claim are classified, beyond the reach even of Congress.

This day a blistering report is released that examines the government's inability to cope with Hurricane Katrina. The report cites the failure to establish a chain of command in the face of a catastrophe that claimed 1,307 lives and left thousands of Americans to fend for themselves. But the president, also on this day, refuses to turn over documents that might set forth who was responsible for the calamitous response and explain how it occurred. Emergency relief planners see it as a matter of some urgency—the next hurricane season is only months away. But providing those documents, says the White House, invoking executive privilege, would undermine the candor of advice the president receives.

This same day, at a Capitol Hill hearing on intelligence, Porter Goss, the embattled head of the CIA, rails against loose lips. “I’m stunned to the quick,” he says, “when I get questions from my professional counterparts saying, ‘Mr. Goss, can’t you Americans keep a secret?’” He calls for an investigation into leaks and says reporters should be hauled before grand juries and made to reveal their sources. He and others are irate that Americans and the world have learned of a network of secret prisons overseas and of a sweeping surveillance program at home.

This same day, the vice chairman of the Senate Select Committee on Intelligence, Sen. John D. Rockefeller (D-W.Va.), says the new national director of intelligence, John D. Negroponte, has already failed his “first test” in addressing the vulnerabilities exposed by 9/11. But classification, says Rockefeller, forbids him from saying what that “first test” is. It’s a tantalizing hint, but one that, like many this day, will leave the public largely in the dark.

On this day, it is also reported that the Patriot Act has been extended for another month. Misgivings about excessive secrecy and intrusions into citizens’ civil liberties and privacy will be taken up another day.

Also reported this day is the existence of a secret team ready to collect forensic evidence left by a terrorist’s nuclear explosion on U.S. soil.The New York Times cites “a senior military official, who insisted on anonymity because he was not authorized to disclose details of this program.” Anonymity is the price of secrecy; one secret in exchange for another. “Trust him and trust us,” the Times is saying. It is a mantra repeated throughout the day in newspapers, over the airwaves, and on the Internet.

This day, too, Congress is reported to have approved nearly $40 billion in budget cuts that are said to fall disproportionately on women on welfare, recipients of Medicaid, college students in need of student loans, and state efforts to get delinquent fathers to pay child support. “This vote,” NPR reports, “will occur in the open on the House floor, but the deals were cut in secret behind closed doors.” Rep. John D. Dingell (D-Mich.) fumes: “This bill is Exhibit A for special interests and lobbyists writing legislation behind closed doors at the expense of the ordinary citizen.”

Also in today’s news is reference to a closed-door session in which House Republicans challenged the leadership and forced back substantive reforms to the system of lobbying that gave rise to the scandalous influence of the lobbyist, now inmate, Jack Abramoff. About the only measure that survived the secret session was a prohibition on lobbyists plying their trade directly on the House floor and in the House gym.

Another story involves former House majority leader Tom DeLay, who resigned while under indictment. Finding his successor, we learn today, will be determined by secret ballot.

What has happened in Washington is mirrored in state after state as lawmakers increasingly shut the door on the public. On this day, it is reported that last year alone some 62 bills that reduced transparency in state government were signed into law.

This day, every city and shire in the land seems to be succumbing to secrecy, as public business is transacted behind drawn curtains, records are sealed, and citizens rebuffed. For those fighting for transparency, victories are few and Pyrrhic. After months of wrangling, San Diegans are given the records of legal bills incurred by six current and former members of the city council. But the documents are so heavily redacted that it is impossible to determine why legal counsel had been considered necessary.

A wait of months is nothing for those at the Southern Illinoisan, in Carbondale. In the town of Taylorville, population 12,000, four children had come down with a rare cancer, neuroblastoma, which strikes nine in a million children. In 1997 the paper had asked the state health department to identify the zip codes of neuroblastoma cases and the dates of diagnosis of the disease to see if there was a link between the cancer cluster and pollution from a local utility company that turned coal into a gas. The fight for those records lasted nine long years. On this day, February 2, 2006, the records were finally released.

Also on this day, in Richmond, Virginia, the Richmond Times–Dispatch writes of a bill that would deny citizens access to information about quasi-public hospitals that receive public money. That would include “information on medical–staff qualifications, strategic planning, fundraising, grants, contracts, and real estate proposals.” If passed, all would be secret. Those who oppose the measure argue that the public has a right to know where its money goes.

On this day, the Fort Wayne newspaper takes up a loophole in Indiana's Open Door Law that allows public business to be conducted behind closed doors. The writer noted that simply by avoiding a quorum in a public meeting, and isolating four Indiana University trustees in one room and four in another, the university president had been able to fire the school's basketball coach without any public input and still claim compliance with the law—a memorable lesson in the avoidance of open governance not lost on that public university's tens of thousands of students.

And in the nation's capital, this day, it is recounted how Superior Court Judge Erik P. Christian locked the doors of a U.S. courtroom while a "guilty" verdict was read in a murder trial. A court spokesman said the judge had merely intended to exclude prospective jurors in an unrelated proceeding. But also left standing in the hallway were members of the press and even the victim's advocate assigned to the case.

Secrecy's grip on business was also in the day's news. A New York Times editorial was headlined “Seducing the Medical Profession.” A whistle–blower alleged that Medtronic had paid millions to physicians in an effort to influence them to use that company's products. “A prominent Wisconsin surgeon received $400,000 for just eight days’ consulting,” the editorial noted. That nugget of information was something the surgeon’s patients might have found of value in choosing whether to heed his advice.

This same day, Enron’s former head of investor relations testified that in the first half of 2001, the company had “fudged its quarterly earnings,” and given bogus numbers to Wall Street to prop up its stock price. To the thousands who, not long after, lost their jobs, pensions, and life savings, such secrets were bared too late.

These and scores of other such accounts of spreading secrecy made the news this February 2, 2006. But there was no public outcry or protest. It was just another day in the life of the nation.

Oh, yes, one more item from the day’s news: “Sunshine Week,” a national observance of the virtues of open government, was but one month off. Preparations were under way. But the weeklong event was taking on the demeanor of a resistance movement and a collective dirge, as if something precious had already disappeared before our very eyes.


*  *  *

The events of February 2, 2006, come upon the heels of more than a thousand other such days in which excessive secrecy has expanded its hold on the country. Beneath the headlines, connecting disparate scandals and tragedies that might have been contained or averted, there was secrecy. In business there was the secrecy that preceded implosions of major corporations and vast economic wreckage at Enron, WorldCom, Arthur Andersen, and Qwest, to name but a few. Stories of secret partnerships, concealed liabilities, and companies covertly plundered by their own CEOs have filled the news in recent years.

Such secrecy has engendered discord and distrust between business and consumers, Wall Street and investors, labor and management. Example: in 2003, as American Airlines struggled with mounting losses and won $1.8 billion in wage concessions from its workers, its CEO, Donald Carty, and 44 of the company's top executives secretly set up a trust fund to protect their own pensions from bankruptcy. The trust was not disclosed until after the unions had accepted massive benefit cuts. As if the secret trust were not inflammatory enough, a company spokesman said that union leaders had been informed of it weeks earlier but had signed a confidentiality agreement that kept them from sharing the information with the very rank-and-file workers they represented.

In hospitals and clinics, life–threatening defects in medical devices go unreported. Studies adverse to drug companies go unpublished and fatal side effects surface belatedly. “FDA Official Alleges Pressure to Suppress Vioxx Findings,” one headline reads. “U.S. Not Told of 2 Deaths During Study of Heart Drug,” reads another. And this one: "Antidepressant Makers Withhold Data: Info from Clinical Trials on Children Kept Secret.”

Each year, in hundreds of courtrooms, secrecy allows deadly products to remain in the stream of commerce. Scores have died as a result of defective tires. The families of the injured and bereaved are written checks in exchange for their silence, as judges lend their imprimatur to secret settlements that cloak the dangers, leaving the public at large exposed to the very same perils.

States, counties, and municipalities have also increasingly embraced secrecy. In Los Angeles, the police commission reversed a quarter–century–old policy of identifying officers implicated in shootings. The decision was made in secret, behind closed doors, fueling community perceptions of official complicity in the use of excessive force. And it is not only overseas that the holding of prisoners is wrapped in secrecy. In 2005, reporters conducted a statewide audit of Kentucky’s jails and found that 70 percent of the time county jailers would not provide even the names of those held, either in defiance or in ignorance of the law.

The nation’s most esteemed cultural institutions are also creatures of secrecy. New York’s Metropolitan Museum of Art steadfastly refused to show me acquisition records for its most celebrated Greek vase, the Euphronios Krater, whose provenance was long mired in suspicion. Only in 2006, after a much-publicized Italian investigation into the looting of antiquities, did the Met own up. “It now appears that the piece came to us in a completely different way—through machinations, lies, clandestine night digging,” acknowledged the Met’s director, Philippe de Montebello, as if it were the first time questions had been raised. Museums in Boston, Cleveland, Los Angeles, and elsewhere face their own questions.

Abusive secrecy has shaken the nation's faith in one institution after another. As pedophiliac priests were silently shuffled from parish to parish, free to prey upon the unsuspecting, the Catholic church made secret payments to silence the victims and quash the scandal.

Even the press, society’s most vociferous champion of transparency, has become tainted by secrecy. More and more often, journalists resort to unnamed sources. Even the American Civil Liberties Union, an outspoken proponent of transparency and unfettered speech, has attempted to silence its own board members from speaking publicly of internal policies and operations.

But nowhere is secrecy more rampant than in government. Those investigating the failure of the intelligence community to thwart the attacks of 9/11 concluded that agencies and departments had failed to share vital intelligence. Some believe that greater coordination and a less rigid grip on secrets might have uncovered and even foiled the plot. And the threat of weapons of mass destruction, the casus belli for invading Iraq, is a testament to the abuse of secrecy by those at the highest levels; the full truth of this abuse is still cloaked in classification.

Today, the most critical national policies, and not just those concerning national security, are the products of secret meetings and cloaked deliberations. Knowledge of which key energy policies were cobbled together behind the closed doors of Vice President Dick Cheney is denied the press, citizens, and Congress alike—and withholding this information is upheld by the courts. Congressional legislation routinely appears without any author's name, masking the identity of special interests and those under their sway. Deals are struck out of public sight. Example: Behind closed doors, federal lawmakers quietly inserted a provision into Medicare legislation that created a $22 billion windfall to the health insurance industry.

Presidential papers from earlier administrations are no longer subject to automatic release. Government websites are vetted and scrubbed. Environmentalists are barred from seeing routine dam and drainage maps, in the name of homeland security.

The search for hundreds of children missing after Hurricane Katrina was stymied by government's refusal to share information from its evacuee database with those searching for the children.

The once–open administration of justice is now undermined by secret courts, closed tribunals and deportation hearings, hidden prisons, covert renditions, and unnamed prisoners sequestered beyond the reach of judicial review. Between 2003 and 2005, the number of criminal cases in federal courts in which records were sealed more than doubled. In 2006, the Reporters Committee for Freedom of the Press attempted to examine 469 cases sealed in the U.S. District Court in the nation's capital. The court’s electronic docket spit back this deceptive response: “No such case.”