Secrecy, Truth, & the Struggle for Peace & Justice: Reflections on the WikiLeaks Revelations
The WikiLeaks saga demonstrates that secrecy plus power results in corruption and crime, and that an informed citizenry is essential to prevent our's from becoming a society where civil liberties are a pipe dream and torture is the norm.
The ongoing WikiLeaks revelations have aroused strong emotions. U.S. Secretary of State Hillary Clinton called the documents’ release “an attack on the international community, the alliances and partnerships, the conversations and negotiations that safeguard global security.”
In fact, the cables take the cloak off executive branch secrecy that has long protected policies that brought us aggressive war, war crimes and the routinization of torture, all of which continue right up to the present.
Among the cables released was one detailing U.S. threats to German authorities in 2007 not to enforce their laws by pursuing criminal prosecution of CIA agents who secretly kidnapped an innocent German citizen, Khaled el-Masri, and tortured him, before realizing they had the wrong person, at which point he was dropped off in the middle of nowhere in Albania. The cable stated “that the USG would ... have a difficult time in managing domestic political implications if international arrest warrants are issued.” The German government obeyed, declining to pursue the CIA agents, apparently undeterred by the words of Jean Amery, a Holocaust survivor who argued that torture was the essence of Nazism.
...the cables take the cloak off executive branch secrecy that has long protected policies that brought us aggressive war, war crimes and the routinization of torture, all of which continue right up to the present.
Another cable dated April 17, 2009, reveals the Obama White House’s successful pressure of the Spanish government, which had issued arrest warrants for the same CIA agents, to stop criminal investigations into the leading torture lawyers of the Bush administration and the use of Spanish bases for extraordinary rendition flights, specifically of el-Masri.
Some may think that the upholding of the rights of torturers revealed by the cables are relics of the Bush administration. Yet quite recently the Obama administration, under Obama’s then-Solicitor General and now U.S. Supreme Court Justice Elena Kagan, in a brief for the Supreme Court, argued that the state secrets privilege is rooted in the Constitution – despite it dating to the time of Europe’s absolutist monarchies. The brief cited a 2007 ruling dismissing a U.S. court case brought by the ACLU on behalf of el-Masri.
The Bush and Obama administrations’ defense of such secrecy threatens not only human dignity but also other precious aspects of the Constitution and the Bill of Rights, notably the free speech, public disclosure, and transparency protected under the First Amendment. For as the father of the U.S. Constitution, James Madison, noted, “Popular government, without popular information, is either a prelude to a tragedy or farce, or perhaps both.”
Torturers have long been considered, like slave traders, hostis humani generis, an enemy of all mankind. The Geneva Conventions, the core of international humanitarian law, and the U.N. Convention Against Torture, prohibit torture in all circumstances, with no exceptions. As treaties signed and ratified by the U.S., under the Supremacy clause of the U.S. Constitution, they are the Supreme Law of the land, on par with U.S. Constitution, with the President obligated to “take care” that the laws be faithfully executed. Moreover, these treaties are, under customary international law, erga omnes, an obligation owing to all, and jus cogens, compelling law from which no derogation is possible.
Secrecy and lies have long imperiled the democratic foundations of republics. Moreover, secrecy has long threatened peace and human rights internationally, as the Pentagon Papers and the current WikiLeaks cables dramatically reveal. Official secrecy was absolutely critical in the executive branch’s embrace of a liberal culture of torture and preparation for aggressive war in Iraq that would not have withstood public scrutiny.
In Toward Perpetual Peace, Immanuel Kant powerfully argued that: “All actions that affect the rights of other human beings, the maxims of which are incompatible with publicity, are unjust. ... If I may not utter my maxim explicitly without thereby thwarting my own aim, if it must rather be kept secret if it is to succeed, if I cannot admit it publicly without thereby inevitably provoking the resistance of all others to my plan, then the necessary and universal and hence a priori understandable opposition to me can be due to nothing other than the injustice with which my maxim threatens everyone.”
As Geoffrey Stone shows in his marvelous book, Perilous Times: Free Speech in Wartime, public transparency and accountability are essential components of democratic governance and the related struggle for global peace and justice. As Supreme Court Justice Potter Stewart wrote in the Pentagon Papers case, “... the executive is endowed with enormous power. ... In the absence of ... governmental checks and balances ... the only effective restraint upon executive ... power ... may lie in an enlightened citizenry. ... For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”
An informed, active citizenry is essential to protect the unalienable rights enshrined in the Declaration of Independence, for which so many Americans have sacrificed their lives.
*A slightly revised version of this piece appeared recently in the San Diego Union Tribune.