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Chapter Review: Michael Colaresi’s “Democracy Declassified” and the Efficacy of Oversight

 

In his recent Democracy Declassified, Michael P. Colaresi evaluates the multi-dimensional state of national security with regard to transparency in democratic governments. Calling upon a wide spate of historical case examples, he aims to reconcile the mutual need for both strong policies that bolster national security and oversight institutions that function as vanguards of transparency and legitimacy. Indeed, in Chapter Six of his book, Colaresi outlines what he believes to be the three “interlocking transparency institutions” that can effectively contribute to lessened skepticism and greater foreign policy efficacy: ex post facto revelation, congressional oversight, and broad freedom of the information. Theoretically, each form of oversight ought to allow for a reasonable balance of legitimate secrecy and public accountability in order to maximize national security prospects. Yet while Colaresi dutifully weighs the benefits of oversight (i.e. policy efficacy and abuse correction) against its alleged shortcomings (i.e. political opportunism, polarization, etc.), he fails to outline a legitimate and practicable solution to oversight concerns, in consideration of recent of history. In other words, while Colaresi certainly provides a general framework of potential solutions to the “secrecy dilemma,” each proposition mandates an effective enforcement mechanism via judicial intervention in order to be substantive in its impact.

democracy-declassfied

            Throughout the course of Chapter Six, Colaresi evaluates what he considers to be the aforementioned three interlocking transparency institutions. Using historical case analysis, he contends that some semblance of freedom of information, legislative oversight, and ex post facto revelations will function as a check on executive overreach and create a reasonable protocol for dealing with political intrigue and crises. In the same vein, his overarching analysis heavily favors investigation and dissemination of relevant information after a crisis has passed well beyond its flashpoint, so as to assess whether “the capacity for secrecy was used for legitimate purposes or misused.”[1] Ultimately, Colaresi rightfully acknowledges the necessity for some degree of secrecy amid “the heat of negotiations or even battle, as in Operation Overlord.”[2] Drawing from the need for ex post facto revelation, he details the potential utility of legislative committees as a sort of objective oversight mechanism divorced from the political interests or agenda of the executive. Using the Civil War era Joint Committee on the Conduct of War as a point of reference, Colaresi delineates how investigations via the legislature functions not only as a remedy to executive abuse, but also as a distiller of ineffective policy (i.e. CCW findings on poor artillery purchase practices by the Union army).[3] In doing so, he posits that oversight in this respect contributes to an ongoing cost-benefit analysis in a thin marketplace of ideas geared toward maximizing policy efficacy. In the same vein, he goes further to extend his line of reasoning to freedom of information laws, under which (ideally) citizens may seek information pertaining “to all executive functions [while] […] not requiring citizens to prove a legal interest in the information for which they are asking.”[4]

As previously mentioned, each institutional mechanism ought to gradually reduce public skepticism and by extension have a positive impact on policy implementation and execution. The logic follows that a democratically elected executive’s ability to lead rests upon the tacit will of her constituents. The nature of that ability, while admittedly complex and beyond the scope of this paper, links to her capacity to negotiate and operate in conjunction with the legislature. The legislature in turn, for all intents and purposes, provides both the legislative and financial resources necessary for the executive to operate. Keeping in mind that public trust and support theoretically have at least some impacts on government (mostly at the congressional level by virtue of direct election), excessive skepticism could retard the efficiency of government and lead to tight strictures on a government’s capacity to act. As such, both freedom of information laws and congressional investigative committees can in theory provide the “inquisitive” electorate with the succor they seek vis-à-vis monitoring underground government activities. Specifically with regard to freedom of information laws, for example, ex post facto revelation of government documents by request firmly places the burden on the public to seek out information, should suspicions of abuse begin to emerge. In other words, citizens reserve the right to seek information, while the government still retains some discretion in redacting case-sensitive information pertaining to ongoing crises. Congressional oversight, also (for argument’s sake) ex post facto, offers the prospect of accessing classified information and vetting for executive abuse via a body separate from the executive. Again, while these mechanisms broadly speaking can serve as a yoke on the executive, each lends itself to potential inefficiencies and logistical flaws that mandate a more concrete means of achieving a balance between capacity for secrecy and transparency. When applied to recent historical cases, such flaws become evident.

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Following the devastating attacks of September 11th, 2001, the United States under the tutelage of the Bush administration vowed to “find those responsible, joining all other countries fighting the global war on terror.” [5] As expected, the attack that claimed the lives of over 3,000 Americans signaled the beginning of a long and protracted war on ideology—exchanging the fight against communism for a crusade against radical Islamism. Likewise, according to Aziz Z. Huq of the Liberty and National Security Project at the Brennan Center, in the immediate aftermath of the attacks “the Bush administration’s monarchist claims of executive power [were] unprecedented on this side of the Atlantic.”[6] While Mr. Huq’s bold claim merits considerable unpacking, one component that certainly characterized President Bush’s use of executive authority involved the detention of enemy combatants at Guantanamo Bay detention camp on the small-island nation of Cuba. Beginning in 2002 and continuing to the present day, Guantanamo Bay and CIA “black sites” have been likened by scholars and critics to modern incarnations of gulags, where both military and intelligence personnel operate under dubious legal jurisdictions. Rather infamously, both Guantanamo and black sites have been centers for “enhanced interrogation” techniques that include data extraction practices such as water-boarding, sleep deprivation, psychological manipulation, and in some especially egregious cases, sexual and physical abuse.[7] Indeed, despite mounting outcry following the revelations of humanitarian abuses, the Bush administration routinely relied “on the flimsiest of legal reasoning claiming that the efforts to capture terrorists” obviated claims of abuse and denial of access to legal recourse.[8] Following eventual probes into CIA activities, under the auspices of the Senate Intelligence Committee, in 2014 a bipartisan congressional committee released a comprehensive report detailing the abuses that occurred under the watch of the intelligence committee—bringing to light a series of gruesome and medieval practices that generated worldwide condemnation.

waterboarding

Importantly, throughout the post-9/11 era, major deference was afforded to the executive both directly and indirectly by the public, legislature, and judiciary. Indeed, the two most prominent tools of oversight (through an ex post facto lens) existed in the Freedom of Information Act of 1966 and the Senate Select Committee on Intelligence. Through one lens, deference to the executive and the intelligence community theoretically allowed both to manage the “crisis” without onerous barriers (i.e. ability to execute military deployment aboard, search and destroy missions, intelligence gathering, etc.). On the other hand, however, ex post facto revelations of abuse via enhanced interrogation and arbitrary detention eliminated any prospects of abuse correction in real time. In other words, by virtue of the government keeping virtually all interrogation techniques and practices under the guise of “classified and case-sensitive” information, very limited avenues existed to identify and correct for abuse. As such, while scholars such as Stephen Ambrose note that revelations of abuse began to emerge as early as 2002, it would not be until 2014 that the legislature or public would have access to relevant materials and reports needed to corroborate claims of abuse and take action to rectify it.

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Beyond the scope of shortcomings in an ex post facto world of oversight, it is important to consider the actual impact of congressional review committees and freedom of information laws more generally. For instance, following the release of the Senate Intelligence Committee’s torture report, President Obama ostensibly issued binding and corrective measures to limit the intelligence community’s capacity for wanton abuse. Indeed, under his Executive Order 13491, President Obama mandated that the CIA comply with the codes and guidelines stipulated by the Army Field Manual with regard to interrogation tactics.[9] However, the corrective measure touted as a success of congressional oversight and intervention amounts to a glorified Band-Aid—a temporary and easily reversible solution to a larger problem. Importantly, the President’s decree merely reaffirms compliance with existing protocol. Secondly, as scholars and critics have repeatedly emphasized, executive orders are easily reversible by a presidential successor that assumes office after the sitting president departs. Reflecting back on the efficacy of Colaresi’s proposed solutions, it would appear that recent historical trends show that even if information becomes broadly more accessible to the public via oversight committees and freedom of information laws, there is little guarantee that such revelations will result in substantive change.

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            Indeed, the problem Colaresi encounters in his evaluation of oversight instruments involves a lack of an effective mechanism to enforce protocol and compliance with regulations. Even with the revelation of abuse (i.e. the aforementioned use of torture), few avenues exist for legal recourse and substantive policy change. The potential remedy for such shortcomings perhaps exists beyond the scope of an elected legislature or the ballot box. For instance, a form of judicial oversight tasked with enforcing regulatory compliance could potentially obviate the partisanship and limited scope that often blights congressional oversight committees. Precedent for a judiciary of this sort is perhaps best reflected in the United States Foreign Intelligence Surveillance Court (FISA) established in 1978 to “oversee requests for surveillance warrants.”[10] However, given the federal rules of procedure and case-sensitive materials typically brought before the court, the public often has extremely limited access to judicial deliberations and content of parties’ claims. Yet such a model, amended in part to balance both a capacity for secrecy and a need for transparency, could force, by rule of law, both the government and its auxiliary agencies to abide by established protocol behind the scenes of international relations and intelligence gathering. An ideal court would consist of five to seven justices appointed by a joint vote of the Senate Intelligence Committee and the Senate Judiciary Committee, and confirmed by a congressional majority vote. Justices would serve an unrenewable two year term and would be guaranteed tenure and compensation under Article III, Section 1 of the U.S. Constitution.[11] Likewise, via passage of legislation by Congress, the court would have full jurisdiction over global intelligence and military activities and be afforded the right to review all classified material. Indeed, to compensate for security risks when dealing with case-sensitive information, the public forum would have access to court manuscripts with appropriate redactions to be determined by a joint review committee consisting of both intelligence and congressional personnel. Indeed, while such a proposal seems ambitious and prone to the same limitations discussed above, rule of law via the judiciary offers an alternative solution that would be mostly divorced from the partisanship and inefficiency that often blights elected congressional officials.

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            Indeed, throughout the course of his work, Colaresi works to formulate a solution that satisfies both pressing national security concerns and the need for institutions that ensure executive accountability. His illustration of the three interlocking institutions of oversight offers a helpful framework for evaluating existing oversight institutions and whether they have succeeded in affecting substantive abuse correction. However, his general framework again lends itself to logistical shortcomings as seen in recent historical examples, particularly from the post-9/11 world. Bearing this in mind, the solution to Colaresi’s problem mandates a concrete and third-party mechanism tasked with ensuring compliance with existing protocol. As such, a revised model of existing oversight courts (e.g. FISA) offers a potential for legitimate enforcement of the law that would respect the sensitivity of national security, while also maintaining some semblance of legitimate transparency and accountability.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

9/11 A War on Terror | HISTORY. (n.d.). Retrieved October 20, 2016, from http://www.history.co.uk/study-topics/history-of-america/911-a-war-on-terror

 

Article III | Constitution | US Law | LII / Legal … (n.d.). Retrieved October 23, 2016, from https://www.law.cornell.edu/constitution/articleiii

 

Ambrose, S. E., & Brinkley, D. (2011). Rise to globalism: American foreign policy since 1938 (p.480). New York: Penguin Books.

 

CIA tactics: What is ‘enhanced interrogation’? – BBC News. (2014, December 10). Retrieved October 23, 2016, from http://www.bbc.com/news/world-us-canada-11723189

 

Colaresi, M. P. (2014). Democracy declassified: The secrecy dilemma in national security (p. 124). Oxford University Press.

 

Executive Order 13491 — Ensuring Lawful Interrogations … (n.d.). Retrieved October 23, 2016, from https://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations

 

Foreign Intelligence Surveillance Court | United States. (n.d.). Retrieved October 23, 2016, from http://www.fisc.uscourts.gov/

 

Kakutani, M. (2007, July 6). Unchecked and Unbalanced. Retrieved October 22, 2016, from http://www.nytimes.com/2007/07/06/books/06book.html?_r=0

 

 

 

[1] Colaresi, M. P. (2014). Democracy declassified: The secrecy dilemma in national security (p. 124). Oxford University Press.

[2] Ibid 125

[3] Ibid 131

[4] Ibid 139

[5] 9/11 A War on Terror | HISTORY. (n.d.). Retrieved October 20, 2016, from http://www.history.co.uk/study-topics/history-of-america/911-a-war-on-terror

 

[6] Kakutani, M. (2007, July 6). Unchecked and Unbalanced. Retrieved October 22, 2016, from http://www.nytimes.com/2007/07/06/books/06book.html?_r=0

 

[7]CIA tactics: What is ‘enhanced interrogation’? – BBC News. (2014, December 10). Retrieved October 23, 2016, from http://www.bbc.com/news/world-us-canada-11723189

 

[8] Ambrose, S. E., & Brinkley, D. (2011). Rise to globalism: American foreign policy since 1938 (p.480). New York: Penguin Books.

[9] Executive Order 13491 — Ensuring Lawful Interrogations … (n.d.). Retrieved October 23, 2016, from https://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations

 

[10] Foreign Intelligence Surveillance Court | United States. (n.d.). Retrieved October 23, 2016, from http://www.fisc.uscourts.gov/

 

[11] Article III | Constitution | US Law | LII / Legal … (n.d.). Retrieved October 23, 2016, from https://www.law.cornell.edu/constitution/articleiii

 

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