A Democratic insider's call for a new presidential secrecy power

Matt Miller of the Center for American Progress wants to crush one of the few remaining means by which Americans learn about their government: disclosure by presidential aides

Published December 7, 2008 11:54AM (EST)

Matt Miller, a Senior Fellow with the Center for American Progress (CAP) and former official in the Clinton OMB, has an Op-Ed in The Washington Post decrying the "kiss-and-tell" books written by top presidential aides once they leave the White House, and he singles out as examples the "tell-all" books written by George Stephanopoulos and Scott McClellan (whose name is repeatedly misspelled throughout the Op-Ed).  Miller doesn't merely want former officials who write such books to be stigmatized and scorned, though he does want that.  Far beyond mere disapproval, he actually wants to vest presidents -- or at least the new President -- with the formal legal power to block publication of these books in the first place:

Just as mergers and marriages that flourished on handshakes and vows had to turn to coarser arrangements once the stakes of break-up became high, the politician-aide relationship now needs its contract. In other words, it is time for the political prenuptial. Barack Obama should simply require key advisers and officials to sign a binding contract of confidentiality as a condition of employment. Aides should pledge not to disclose anything they see until, say, five years after their boss leaves office.

That is an atrocious idea.  For one thing, it's hard to see how enforcement of these silencing contracts could be permitted in light of the First Amendment.  And I doubt that Obama, for appearance reasons if nothing else, would take this proposal seriously.  But those matters aside, the thinking behind this proposal is common among Beltway insiders and reveals much about the ways of Washington.

The attribute that defines Beltway culture as much as anything else is obsessive, gratuitous secrecy.  The vast bulk of what takes place of any consequence occurs away from the public eye.  Even laws which Congress enacts are proposed, negotiated and written behind closed doors with lobbyists and operatives.  By the time these bills are even known to the public, let alone openly "debated," their outcome is a foregone conclusion.  Floor "debates" and Congressional votes are pure theater, empty rituals with no purpose other than to ratify pre-ordained outcomes that were determined in secret.

Presidents in particular already possess a vast arsenal of weapons to prevent transparency, from the virtually unfettered power to classify to borderline-omnipotent investigation-quashing tools such as the state secrets and executive privileges.  As Radley Balko detailed in his recent article urging the Obama administration to renounce claims of executive privilege except where genuine national security secrets are jeopardized by disclosures, these powers have grown so rapidly over the last decade that Presidents can now maintain an almost impenetrable wall of secrecy around virtually everything they do.  CAP's own blog, ThinkProgress, just recently cited a report documenting "that by almost every measure, government secrecy is rising."

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In light of that, it's staggering that people like Miller, now that there's a Democratic administration on the horizon, would be plotting and advocating still new presidential powers to further strengthen the wall of secrecy behind which our Government operates.  One of the very few reasons that we have learned anything meaningful about what the Bush administration did was because people inside the administration decided, for whatever reasons, to shed light on it, to leak it, and to describe what they saw and heard.   

Just imagine the ugly, anti-democratic spectacles that would arise if Miller's proposal were accepted.  If someone like Scott McClellan were about to publish a book that contained embarrassing -- though completely unclassified -- revelations about what President Obama said or did, then Obama could send lawyers into court seeking to enjoin publication of the book.  Or the whistle-blowing author could be sued by the President for damages for having described what he saw.  Who could possibly think that's desirable?

The justifying analogy Miller invokes is quite telling:

It's a shame, of course, that integrity has to be assured rather than assumed, but the political pre-nup is an idea whose time has come. Hollywood celebrities have required such contracts forever, from every cook, nanny and "personal assistant" they hire. Once President-elect Obama and his transition leaders think about this, they'll realize that there is no downside to a pre-nup and no shame in insisting on one.

It's true that Hollywood celebrities are obsessed with secrecy and routinely impose confidentiality agreements of this sort on their employees.  But there's a reason for that:  their careers depend upon the maintenance of a deceptive image, of obscuring -- rather than illuminating -- who they really are and what they really do.  Hollywood sells fantasy and reality-detached imagery to consumers.  The whole point of that model is to prevent reality from interfering with fiction.

Does it take any effort at all to explain why that model, cited by Miller as the one Obama should adopt, is the exact opposite of what we should want for our democratic process and political leaders?  The Washington political/media establishment, at its core, is already driven by the type of obfuscating "access journalism" -- fawning-coverage-in-exchange-for-exclusives, punishment-for-negative-coverage -- that Hollywood and sports celebrities have pioneered.  Leading politicians are already surrounded by armies of P.R. and marketing experts who rely on pure Madison Avenue techniques to shape perceptions, manufacture contrived campaign images, and -- by design -- blind the public to basic political realities.

One of the very few ways that sunlight ever breaks through all of that and illuminates what our political leaders actually do is when insiders -- whether driven by noble whistle-blowing, or profit-seeking, or vindictiveness, or score-settling -- decide to pull the curtains back.  A healthy democracy requires, at a bare minimum, awareness on the part of the citizenry of what their political leaders are doing.  How could anyone think that what is needed is to smash the few remaining methods by which that disclosure takes place?  What mentality leads someone to look at Scott McClellan's book -- revealing that the administration deliberately propagandized about the War, that the press was passive and complicit, that top Bush officials jointly scripted their responses to prosecutors in the CIA leak case -- and wish that George Bush had been empowered to prevent its publication until 2013?

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Given that aides could still anonymously leak whatever they wanted, confidentiality contracts wouldn't even produce the sole so-called "benefit" Miller seeks to achieve ("it would make Barack Obama the first president to enter meetings secure in the knowledge that if any notes his aides are scribbling are destined to appear in print, it will be long after he has left the White House").  But even if these contracts could achieve that, in what way is that a benefit?  Public disclosure is a critical check on abuse of power.  There's no greater ally for improper actions than darkness.  As Balko put it:

The president's political appointees are public servants. Their salaries are paid by taxpayers. What they do and say on the public payroll should be accessible to the public, to the courts, and to congressional oversight. If a presidential aide fears that advice he gives the president could subject him to legal action or congressional subpoena down the road, he shouldn't give advice that's of questionable legality or that's ethically dubious in the first place. It really is that simple.

Part of what motivates this Beltway fixation on secrecy is an ignoble attribute of human nature, or at least an attribute of a certain common psyche.  The more exclusive a club is, the more privileged someone feels to belong to it.  The fewer people with access to certain information, the more special those who have been granted access to it -- Beltway insiders and source-pleasing journalists -- believe themselves to be. 

Francis Bacon's now-clichéd-though-still-true observation that "knowledge is power" means that the more ignorant the rabble are kept about what Beltway rulers are doing, the more powerful Beltway rulers and their underlings become.  Hence, Beltway insiders cherish their secrecy (and though it's amazing in one sense, it should thus come as no surprise that Miller is actually a career journalist -- someone who therefore, in theory, ought to cheer when government officials disclose what they see, not think of ways to empower political officials to legally suppress it).

As much as we need anything else, we need a massive reduction in government secrecy and a massive increase in transparency.  Obama himself (as well as, ironically, CAP's President and Obama tranistion chief John Podesta) has repeatedly said as much:

"People from every State in this great Nation sent us to Congress to defend their rights and stand up for their interests," Sen. Obama said in a prepared floor statement. "To do that we have to tear down the barriers that separate citizens from the democratic process and to shine a brighter light on the inner workings of Washington."

It's hard to know how widespread Miller's desire for still-greater secrecy is -- could anyone even imagine a Senior Fellow at CAP proposing this while Bush was President? -- but however widespread it is, this mentality should be vigorously combated whenever it rears its anti-democratic head.  As a top priority, the wall of secrecy erected around our Government needs to be severely eroded, not fortified.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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