Secrecy and cover-up

The Justice Department’s Office of Professional Responsibility can’t investigate possible misconduct by DoJ personnel in approving the NSA warrantless-wiretapping program, because the NSA has refused the necessary security clearances.

If you doubt that secrecy rules are being used as a means of covering up criminal wrongdoing, consider the latest:

The Office of Professional Responsibility at the Justice Department &#8212 the outfit that investigates when accusations of misconduct are made against DoJ lawyers &#8212 has been denied the security clearances necessary to look into the process by which the NSA wiretapping program was approved. Consequently, OPR has shut down its planned investigation.

There are two criteria for granting someone clearance for access to any particular body of classified material: suitability, and need to know. Suitability has to do with the potential recipient’s reliability in terms of keeping secrets secret. Need to know has to do with the purpose for which the information is sought. If someone has been issued a clearance showing his suitability at a given level (Confidential, Secret, or Top Secret) then the remaining question is merely whether he has sufficient need to know the information to justify the risk of sharing it with him.

Of course OPM investigators have all been through rigorous background checks. Suitability shouldn’t have been an issue. Even if further investigation showed that one or more of the OPM personnel proposed for access had previously undiscovered security risks associated with them, that would justify excluding only them, not their while agency.

So this decision could only have been made on the basis of “need to know.” Since the program in question was an NSA program, presumably the decision on access would have been made within the NSA. So in effect the NSA has decided that the public interest would not be served by having the means by which its program was approved reviewed by an independent set of investigators.

Now couple that with Bobby Ray Inman’s flat declaration that the warrantless-wiretapping program “was not authorized” by law, and what you have isn’t a security decision: it’s a coverup.

Footnote See the Carpetbagger for another blatant White House move, with Congressional Republican connivance, to cover up criminal activity: in this case, theft of reconstruction funds in Iraq. Hat tip: Kevin Drum. It would be a bold prosecutorial theory, but not an utterly implausible one, to charge whoever in the White House pushed for the switcheroo, knowing that doing so would facilitate theft of public funds, as an accessory before the fact in the thefts. But of course that would require changing the law &#8212 or beefing up the State Department IG’s office &#8212 to make those cases in the first place. In the meantime, “The White House and Congressional Republicans decided to make it easier to steal the money intended to rebuild Iraq” isn’t a bad thing for Democrats to add to every speech between now and November 2006. Let’s hope the Senate Democrats dig in their heels on this one.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

One thought on “Secrecy and cover-up”

  1. Nice summing up. This story is one I don't want to see overlooked… I know some Dems have been hitting this one. Also, the linked Iraq reconstruction story, eliminating oversight, is both predictable and dismaying. Every time these guys get caught doing something wrong, their solution is not to clean things up, but to eliminate oversight (as with the Texas redistricting). Has oversight really ever been so lacking in the past 100 years?

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