I am the codirector of the liberty and National Security program at the Brennan Center for justice. Welcome to the days Panel Discussion on government secrecy and the fourth estate. The impetus for the event is a publication of rich schwarzenegger new book. Democracy in the dark. And the said you can of government seek see. This is achieve council and so much more than that. And for he has had a fascinating career in and out of public service. No part of that career is more important, and more intriguing than his role as chief council on the Church Committee in the 1970s. As you all know, the committee exposed wide fraed intelligence abuses and led to the complete overhaul of how intelligence operations are structured and over seen in this country. The Church Committee also produced another result which is that it shed light on the nature of government secrecy. And this became a live long study of fritz which has culminated in this wonderful book. So i will ask them to come up here. To speak about the book. And then i will invite the panelists up for the free foirm discussion on one of the themes of the book. The role of journalism as counter weight of government secrecy. Fritz . [applause] thank you very much liza. I should say that this nice title of the book was not my idea. It was li zas idea. She is a good woman. And thank you all for coming. And thanks to the board chair of the Brennan Center who donate. Bought. And donated the books out there. Which are available and are being given away. I want to start with a confession about my work on the Church Committee. I did not pay very much attention to the secrecy when i was worker to the Church Committee. I paid attention to secrets. My drive and my push was to expose as much as we could to make people angry. And concerned. Because i believed that we could not get reform. Up less people were upset and bothered so i did not think very much about seek see. I started to do that later. And i did a whole lot in five years of working on this book. The book is about secrecy. But you cant talk about the secrecy but also talk about the journalism and openness. And nupdz particularly. They are the key. Have been the key throughout history to the openness. A few themes about the book. My usual talk about the book is 20 minutes. I will try to make it like 7 minutes here. What are the big themes . Dooch too much second see. Too much. The some of the government secrecy is in hes and the people that do not appreciate that as the house committee. Parallel to the Church Committee did not. They are going to fail. And too much secrecy will hide the embarrassment and legality. Contrary to the conventional wisdom, the reason that we have the mountains ever growing mountains. A hundred million documents marked secrets now about 20 each year. About 20 million declassified and they are growing and growing. The reason that we have so many documents is not simply because there are some legitimate secrets and there are some secrets designed to protect the embarrassment and legal tlichlt are some reasons for secrecy. Lethargj and fear. And ambition. For example. Many of the people now, in order to have their documents noticed will range to have the document to be top secret. So it is not lost in the blizzards and the avalanches of the papers and the blizzards and bites that would otherwise swamp it. Another point that is contrary to the conventional wisdom is that classcation is going to be by no means the only secrecy problem. Let me give a couple of examples of that. For 180 years, president s believed that they owned their documents and took the documents and destroyed them if they wanted to. Or kept them from the public for 150 years as the john adams family did. Or sole the documents back to the government. Though they had produced documents working for the government. That was nothing to do with the classcation but just a tradition. It lasted until Richard Nixon when the president ial records act was passed and interestingly. In light of the recent controversies the president s after the records act reagan. Hw bush and clinton all argued that emails were not covered by the president ial records act. They were not document. They lost those cases. The coffins of arriving from foreign wars that dover base in delaware. Not allowed to be photographed until barack obama and gates changed that rule. That had nothing to do with the classcation. The white house meetings. Meeting thats are confidential but meetings if they bring together only a code of like minded people do not produce the kind of discussion that is important and valuable for a president to have. That has nothing to do with classcation but it is a real problem of secrecy. Dick cheney to pick on him for a minute. Secrecy is not apart san issue. As much as republicans and the churchs committees most important findings were that lisa mentioned. 6 administrations from Franklin Roosevelt and richard nix only. Four democrats and two republicans. They all abused their secret powers. But cheney understood the idea of president ial meetings, not being a secret. Not being just a collection of people that just had the same views. When he was achieve of staff to president ford fought mightily to have conflicting views from the administration that would be presented before a decision was made. When he became vice president. He had a different view of how president ial meetings should be organized. And they would be best if there was just himself and george bush. That is wellknown. Something that is not known and for the first time is published in the book is that in the decent from the irancontra report he said that a wise white house should make sure not to have excessive secrecy. And more importantly than that, a wise white house should have what he called democratic persuasion so that if you had a difficult issue of National Security or of Foreign Policy you will publicly discuss the pros and the conversations. That also disappeared when cheney was with the vice president. I would bring this up first. It is interesting and second the book is in the first place ever to find it and third. Tv is interesting that the very good reporters that covered the irancontra never found that little anything net cheneys decent. Nor did anyone go back to read the decent of 78 when he came to be vice president. So when reporters generally find everything. This is a good example of where they didnt there is a title of the book. I will say a little bit of what the book will say about democracy. And the dark. And what it says about journalists. The problem really here. With seek see. Is not that it would conceal allegeality or conceals the embarrassment but excessive cease secrecy. Is profoundly undemocratic. So to get back to the hymns of the declaration of independence. And the address. In the declaration that jefferson said adjust government drives the legitimacy from the consent of the government cannot consent unless they are informed to the maximum extent possible. And lincoln in the gettysburg address finishes by saying we resolve that the government of the people. The by the people. And for the people shall not perish from this earth. You cant have a government by the people unless again the people are reasonably it to the maximum extent possible involved. Form reasons not informed adequately today. The believe that there is no public that is capable there. Are others as well. A little bit about newspapers and some of the points that i found interesting in the book. In early america. Newspapers. Were stressed as vital democrat okay crassy. And madison said that the Public Opinion in the democracy is the real sovereign and then the Congress Passed the post office act that subsidized newspaper thats would be vital to our earlier history. And vital to the first 150 years of history. By the 1830s. 90 of the volume. By weight. Of materials that went through the post were newspapers and only about 12 of the revenue came from newspapers. That the u. S. Congress established. At the end of the 19th send furry. There were about in 1870s. 500 new daily newspaperses by the century. There was like 2300 daily newspapers. Tocqueville thought that the newspapers were the key to the success of american democracy. In all of the earlier years, the newspapers provided a benefit to the country of die fusion of information. Today there are plenty of other ways the information gets spread about. There is die fusion of information. Plenty are discovery of information. Bart gelman in his thinking. And speaking and writing about the subject said that when he um sees a classcation stamp that he thinks of it as a yellow light and not a red light. And the government very fortunately for the going government it lost the pentagon papers case. They are far better off today that they lost that case than they would have been had they won it. The newspapers are willing and able to check in with the government that is details in the story will not inadvertently reveal say the identity of the agent in egypt or Something Like that. That done. That is sort of what he meant by the met for the yellow light and not a red light that is a good practice. As long as journals do not wait too long or lose their vigor because they are checking on whether a particular story will inadvertently do something that they would not want to do. The New York Times held that story that came out in december of 05 for the whole year. And i this i that was too long. But if that practice is done for a short time, it is okay. So we have to worry about the future of investigative journalism. Will it survive given practicing good investigative journalism. Maybe a few newspaper and is that enough or a few National Stories and not for local stories i want to finish with just onant let or anecdote or fact. I was told at a conference about a conference from the pentagon. Panel. I was on the pan. We talked about he is the ed that they got the manning documents from wikileaks. He signed a group of 50 people that worked for four weeks to vet that material. That is a heck of an expense. So till straights how that ared may be for journalism to continue to do the Vital Service of delivering the discovery of the information. Which is he sent yes, maam to the continuation of the democracy. So thank you all. [applause] i would like to invite the panelistes to come up to the panel and as i do so. I will introduce our moderators. Steve, is a director of the government secrecy project at the federation of american scientists. Which will rework the secrecy. And promoting Public Access to government information. We dont have a program here. We dont have a written program. So the full accomplishments. And awards. Can be found on the web site. And i will just briefly. Because it is going to take too long. I will mention the fact that steve is the author of the blog secrecy news an inch valuable resource. And we do have the program. My apologies this is in the program. Author of the secrecy news a wonderful resource. Steve. Thank you liza. And thank you to the center. There is a big subject. A bunch of very mart people. I want to jump right into it. First pose for the panelist and also let them respond and see where we go. Bart maybe i will start with you. The Washington Post last month. Had a story that the head of the cia Counterterrorism Center would be reassigned and replaced. They declined to name him. They said that he was uncover. So i would not be identified by name. Then gawker went ahead and named him. So my question for you is did the Washington Post submit to the said you can of secrecy as fritz called it . Or did it exercise prudent judgment. What are the questions, and what should the me. The public think when they see an outlet withholding the information. And only to have it revealed by another so i spent a big chunk of my career at the post. To make that clear. I dont note circumstances he can actually. But there is consider ages to want them to entertain is that there are many not many subjects for the law to forbid the publication. So if this gentleman, had recently been or was sueded to be a stations overseas i dont think that is the case here. If the u. S. Government could make a persuasive case that his naming in that article would have exposed him or someone else to a specific danger, that would have been a reason to withhold. I doubt that was the case either. His name had been published before and was available online. The story acknowledged that. And the post was saying. If you want to find the name. You can. Which are not publishing it. It is important to acknowledge that. You know. If you are going to hold it back. I dont know why. Knowing what i know now. Okay. Um you know i think that we are most of us are live in the age of being congenial. Let me try to challenge that and to ask gary cordero. And former justice official what if we are living in the age of unprecedented openness . I pose the question. In seriousness. I remember 20 years ago during the budget season that i would go over to the pentagon to get the budget documents you know. I had to take the metro. I had to get into the building since i did not have a press credential. I needed a building pass. In order to get a building pass. Would i have to be finger print and have the National Agency checked. The equivalent of getting a secret clearance. Eventually, i would get a stack of budget dock uchlts to take them back to the office. And to weighed through them page by page. 20 years later, not only i but anyone will get the budget documents instantly the moment they are released. I this i that the credible argument could be made that more government information is more easily available to more people. Than ever before. So i wonder if you would like to comment on that to ask on anything or anything would you like to see. The era of new openness. I do not know anyone that would look at the Current Situation and to take into account the changes in technology. And that you are describing the difference and access to the information that resides digitally. Instead of in a file cabinet somewhere, where it is hard to locate. I think that we definitely are in a new era of openness. I this i that the question will become in this sort of picking up on the issue thats are in the book as well is what then are sort of the legitimate ways for the information to become public and to be as public. To come in from my having been in a government background there is a big difference between what you just describe and your past where you had a bavenlg and you went through the process as it is laid out. And had legitimate access to information that had been released through some sort of a structured process. There is a difference between that. And information that occurs because somebody leaks documents. Claekz leaks classified documents and commits a crime in order for the information to end up in the Public Domain in some way. Then i this i that the question that we are looking at right now. Often we hear about the balance of the public interest. So often times what we will hear is that the adjustcation for the information being published even if it was classified information that it would release and the public interest. So then as we can continue we will have different answers to what we would have in the public interest. Okay. Very good. Um. Charlie savage the New York Times. Fritz has written. And i think said a moment ago. That the traditional rolf the press is to decimate the news. But that under prevailing conditions of seek see. The reporters will have to do more than that they will have to discover the newest information. To present it. To the public. This may not be what he was thinking of but it made me think of the relatively new practice and many could not place of which news stories are based on official documents. This is increasingly good with the practice to make those document publicly available online. That pioneered and pioneered or helped to reinforce. And i hope that you can reflect on that practice and how it is emerged. And performed. Sure. This is something that would not be possible without sort of the internet and pdfs and the ability to post things ease scompleet creation of the document cloud service. And a public good form reporteres to up load and to find and share the primary documents. My own reporting and countless others as well. And in away where a reporter can up load without the hoopla. And lowered the bar. To just getting it out there. And the importance of that is that talking about how he went back to read the minority views. Cheney wrote it. Cheneys people wrote it for him. He worked for a republican congressman on the minority report. The point is that stuff can be available and yet not recognized, right . And if you are a reporter that has been fortunate to come across this thing or that thing. When you go through it the best that you can you find what you think is interesting and true about it but you may have missed something . Several years ago you made a statement which has been etched in countless articles in all sorts of publications to the effect that age of subpoenas against newspaper reporters was trying to make clothes. Not because the government did not want to know the reporters sources but they have other ways of finding out. Could you revisit and elaborate on that statement about how long that is coming true . [laughter] that was several years ago. A couple of people were at the same meeting was that. What i meant is the subpoena that we saw 2008, at that time there are getting far more aggressive use electronic tools and as jim disclosed theyre now using electronic data to do a matrix foreign journalist. They can get your records credit card receipts it is not a subpoena on a new there reporter but i want you on the witness stand to tell me what you saw. Not to say it will never happen again but what theyre doing is gathering information to identify who is a likely person to have gotten that and tried to survey the universe of electronic data to figure out who your source likely would have been in the mere fact they have the capacity to do that. It is not like 30 years ago when to identify a confidential source they had to tell you. The value can get it other ways as we saw with the sterlin