Redacting Democracy: What You Can’t See Can Hurt You
Reprinted with permission from TomDispatch.
The Nobel Prize-winning Czech author Milan Kundera began his 1979 novel, The Book of Laughter and Forgetting, by describing two photographs. In the first, two men are standing side by side, a Czech nationalist later executed for his views and the country’s Communist ruler. In the second, the dissenter is gone, airbrushed out. Just the dictator remains. Today, if Kundera hadn’t written that opening to his book, only someone with a long memory or a penchant for research would know that the two men had ever shared a podium or that, on that long-gone day, the dissident had placed his fur hat on the dictator’s cold head. Today, in the world of Donald Trump and Robert Mueller, we might say that the dissident was redacted from the photo. For Kundera, embarking on a novel about memory and forgetting, that erasure in the historical record was tantamount to a crime against both the country and time itself.
In the Soviet Union, such photographic airbrushing became a political art form. Today, however, when it comes to repeated acts meant to erase reality’s record and memory, it wouldn’t be Eastern Europe or Russia that came to mind but the United States. With the release of the Mueller report, the word “redaction” is once again in the news, though for those of us who follow such things, it seems but an echo of so many other redactions, airbrushings, and disappearances from history that have become a way of life in Washington since the onset of the Global War on Terror.
In the 448 pages of the Mueller Report, there are nearly 1,000 redactions. They appear on 40% of its pages, some adding up to only a few words (or possibly names), others blacking out whole pages. Attorney General William Barr warned House Judiciary Committee Chairman Jerry Nadler (D-NY) about the need to classify parts of the report and when Barr released it, the Wall Street Journal suggested that the thousand unreadable passages included “few major redactions.” On the other hand, House Appropriations Committee Chairwoman Nita Lowey was typical of congressional Democrats in suggesting that the speed — less than 48 hours — of Barr’s initial review of the document was “more suspicious than impressive.” Still, on the whole, while there was some fierce criticism of the redacted nature of the report, it proved less than might have been anticipated, perhaps because in this century Americans have grown used to living in an age of redactions.
Such complacency should be cause for concern. For while redactions can be necessary and classification is undoubtedly a part of modern government life, the aura of secrecy that invariably accompanies such acts inevitably redacts democracy as well.
Redaction, like its sibling deletion, is anything but an unprecedented phenomenon when it comes to making U.S. government documents public. My generation, after all, received the Warren Commission Report on the assassination of President John F. Kennedy with significant redactions in the very records on which it was based. And who among us could forget that infamous 18-and-a-half minute gap in the tapes President Richard Nixon secretly used to record Oval Office conversations? That particular deletionwould prove crucial when later testimony revealed that it had undoubtedly been done to hide evidence connecting the White House to the Watergate
Still, even given such examples, the post-9/11 period stands out in American history for its relentless reliance on redacting material in government reports. Consider, for instance, the 28 pages about Saudi Arabia that were totally blacked out of the December 2002 report of the Joint Congressional Inquiry into the failure to prevent al-Qaeda’s attacks that fateful day. Similarly, the 2005 Robb-Silberman Report on Weapons of Mass Destruction, classified — and therefore redacted — entire chapters, as well as parts of its chief takeaway, its 74 recommendations, six of which were completely excised.
Infamously enough, the numerous military reports on the well-photographed abuses that American military personnel committed at Abu Ghraib, the Iraqi prison, came out with substantial redactions. So, too, have the reports and books on the CIA’s use of enhanced interrogation techniques on war on terror detainees held at its “black sites.” In FBI agent Ali Soufan’s book, The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda, for example, large portions of a chapter on Abu Zubaydah, an al-Qaeda figure who was brutally waterboarded 83 times, were redacted by the CIA. It mattered not at all that Soufan had already testified in a public hearing before Congress about his success in eliciting information from Zubaydah by building rapport with him and registered his protest over the CIA’s use of brutal techniques as well. And the nearly 400-page executive summary of the extensive Senate Select Intelligence Committee’s Torture Report was partially redacted, too, even though it was already a carefully chosen version of a more than 6,700-page report that was not given a public airing.
It’s worth noting that such acts of redaction have taken place in an era in which information has been removed from the public domain and classified at unprecedented levels — and unacceptable ones for a democracy. In the first 19 years of this century, the number of government documents being classified has expanded exponentially, initially accelerating in the immediate aftermath of 9/11. Between 2001 and 2005, for instance, the number of government documents classified per year doubled. Even former New Jersey Governor Tom Kean, chairman of the 9/11 Commission, pushed back against the growing urge of the national security state to excessively classify — that is, after a fashion, redact — almost any kind of information. “You’d just be amazed at the kind of information that’s classified — everyday information, things we all know from the newspaper,” he said. “We’re better off with openness. The best ally we have in protecting ourselves against terrorism is an informed public.”
Along the same lines, well-known judges in national security cases have repeatedly commented on the way in which information that, to their minds, did not constitute sensitive material was classified. For example, Judge T.S. Ellis III, who has overseen numerous high-profile national security cases, admitted his “firm suspicion that the executive branch over-classifies a great deal of material that does not warrant classification.” Ellis’s colleague, Judge Leonie Brinkema, underscored the obstacles classification imposed in the trial of now-convicted terrorism defendant Zacarias Moussaoui, expressing her frustration at the “shroud of secrecy that had hampered the prosecution of the defendant.” Other judges have echoed their sentiments.
In the first days of his presidency, Barack Obama declared his intention to reverse the trend towards over-classification. His administration then issued a memo, “Transparency and Open Government,” that promised “an unprecedented level of openness in government.” In April 2009, he also ordered the release of the 2002-2005 memos from the Office of Legal Counsel that had been written to justify the “enhanced interrogation techniques” that President George W. Bush’s top officials had put in place for use in the Global War on Terror. In 2010, Obama also signed into law the Reducing Over-Classification Act aimed at decreasing “over-classification and promot[ing] information sharing across the federal government and with state, local, tribal, and private sector entities.” And for a time, the rate of classification of new documents did indeed drop.
In the end, though, it proved impossible to stanch, no less reverse the urge to keep information from the public. As Obama explained, “While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security.”
Another government tactic that, as with former FBI agent Soufan’s book, has given redaction a place of pride in Washington is the ongoing strict pre-publication review process now in place. Former public servants who worked in intelligence and other positions requiring security clearances (including former contractors) and then wrote books about their time in office must undergo it. In April, the Knight First Amendment Institute and the ACLU focused on this very issue, jointly filing suit over the pre-publication review of such books, citing, among other things, the First Amendment issue of suppressing speech. In the words of Harvard law professor Jack Goldsmith and Yale law professor Oona Hathaway:
“Clearly, the government has a legitimate interest in preventing disclosure of classified information. But the current prepublication review process is too expansive, slow, and susceptible to abuse… In an era characterized by endless war and a bloated secrecy bureaucracy, the restrictions on commentary and criticism about government policies and practices pose an intolerable cost to our democracy.”
And bad as the urge to redact has been, in recent times the Trump administration and the national security state have taken its spirit one step further by trying to prevent the actual reporting of information. In March, for instance, President Trump issued an executive order revoking the need for the Pentagon to make public its drone strikes in the war on terror or the civilian casualties they cause. In a similar fashion, the American military command in Afghanistan announced its decision to no longer report on the amount of territory under Taliban control, a metric that the previous U.S. commander there had called the “most telling in a counterinsurgency.” Similarly, President Trump has repeatedly displayed his aversion to any kind of basic note taking or record-keeping during White House meetings with aides and lawyers (as the Mueller Report pointed out).
In this century, the American public has learned to live in an increasingly redacted world. Whether protest over the level of redactions in the Mueller report will in any way change that remains doubtful, at best.
Certainly, Nadler has been insistent that the Judiciary Committee should see the entire unredacted report. At the recent Judiciary Committee hearing that Attorney General Barr refused to attend, the Judiciary chair acknowledged the dangers to democracy that lie in an increasing lack of transparency and accountability. “I am certain,” he said, “there is no way forward for this country that does not include a reckoning of this clear and present danger to our constitutional order… History will judge us for how we face this challenge. We will all be held accountable in one way or another.”
As he suggested, democracy itself can, in the end, be redacted if the culture of blacking-out key information becomes Washington’s accepted paradigm. And with such redactions goes, of course, the redaction of the very idea of an informed citizenry, which lies at the heart of the democratic way of life. Under the circumstances, perhaps it’s not surprising that polls show trust in government in steady decline for decades (with a brief reversal right after 9/11).
In the end, blacking out the record of the grimmest aspects of our own recent history will leave American citizens unable to understand the country in which they live. Informed or not, we all share responsibility for the American future. As with that photograph in the Kundera novel, our children may one day see the consequences of our past acts without truly recognizing them, just as many Czechs who saw that photo Kundera described undoubtedly thought it represented reality.
The record of how democracy is being redacted — sentence by sentence, passage by passage, fact by fact, event by event — would surely have rung a bell with Milan Kundera. He summed his own time’s version of the process this way: “The struggle of man against power is the struggle of memory against forgetting.” Today, Americans are forgetting.
Karen J. Greenberg is the director of the Center on National Security at Fordham Law and editor-in-chief of the CNS Soufan Group Morning Brief. She is the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Julia Tedesco helped with research for this article.