Tag: Secrets

Morozov vs. Cyber-Alarmism

I’m no information security expert, but you don’t have to be to realize that an outbreak of cyber-alarmism afflicts American pundits and reporters.

As Jim Harper and Tim Lee have repeatedly argued (with a little help from me), while the internet created new opportunities for crime, spying, vandalism and military attack, the evidence that the web opens a huge American national security vulnerability comes not from events but from improbable what-ifs. That idea is, in other words, still a theory. Few pundits bother to point out that hackers don’t kill, that cyberspies don’t seem to have stolen many (or any?) important American secrets, and that our most critical infrastructure is not run on the public internet and thus is relatively invulnerable to cyberwhatever. They never note that to the extent that future wars have an online component, this redounds to the U.S. advantage, given our technological prowess.  Even the Wall Street Journal and New York Times recently published breathless stories exaggerating our vulnerability to online attacks and espionage.

So it’s good to see that the July/ August Boston Review has a terrific article by Evgeny Morozov taking on the alarmists. He provides not only a sober net assessment of the various worries categorized by the vague modifier “cyber” but even offers a theory about why hype wins.

Why is there so much concern about “cyber-terrorism”? Answering a question with a question: who frames the debate? Much of the data are gathered by ultra-secretive government agencies—which need to justify their own existence—and cyber-security companies—which derive commercial benefits from popular anxiety. Journalists do not help. Gloomy scenarios and speculations about cyber-Armaggedon draw attention, even if they are relatively short on facts.

I agree.

The White House as Animal Farm

As George Orwell’s Animal Farm closes, the revolutionary pigs have been transformed into oppressive humans.  It took some time to occur on the Animal Farm.  It’s taken just a few months in the Obama White House.

Reports McClatchy Newspapers:

President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama’s legal arguments repeatedly mirror Bush’s: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

“It’s putting up a veritable wall around the White House, and it’s so at odds with Obama’s campaign commitment to more open government,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist.

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration’s legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

“There is no question that there are (durable) cultures and mindsets in agencies,” Weismann acknowledged.

Conservatives once opposed executive aggrandizement.  Then with George W. Bush in office, they embraced the idea of the presidency as a kind of elective monarchy.  With President Barack Obama now pushing the executive power grab, will conservatives rediscover their inner-Constitution and again join the barricades for liberty?

State Secrets Case Proceeds

A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees.  (H/T SCOTUSBlog)

The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured.  The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.

This presents a split in federal circuit rulings on the State Secrets Privilege.  The Fourth Circuit held that the Privilege could bar a civil suit entirely.  This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds.  “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”

As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability.  All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.