Steve Aftergood's Testimony to Senate Hearing

On April 30, at Senator Russ Feingold’s senate hearing on Secret Law, Steven Aftergood testified and provided a catalog of current forms of “secret law” and its consequences such as promoting arbitrary government behavior and shielding malefactors from accountability. His posting on the Secrecy News from the FAS Project on Government Secrecy is reproduced here, with his permission, with links intact.

Many thanks to the FAS project and Steve Aftergood for their great work on fighting unnecessary government secrecy, a great concern of this author and this blog.

Secret Law Debated in Senate Hearing (From the FAS Web Site by Steve Aftergood)

Secret law that governs the conduct of government activities but is inaccessible to the public is “a particularly sinister” phenomenon that is “increasingly prevalent,” said Senator Russ Feingold today at a hearing of the Senate Judiciary Committee Subcommittee on the Constitution.

The hearing produced a particularly rich record on the subject of secret law from a broad and diverse set of perspectives (including one view that “there is no such thing” as secret law).

In my own testimony (pdf), I provided a catalog of the many current forms of “secret law” and some of their objectionable consequences.

“If the rule of law is to prevail, the requirements of the law must be clear and discoverable,” I suggested. “Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability.”

The classification of the Office of Legal Counsel (OLC) memorandum of torture authored by John Yoo was “one of the worst abuses of the classification process I have seen during my career,” testified J. William Leonard (pdf), the former director of the Information Security Oversight Office.

More generally, “OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public,” said Prof. Dawn E. Johnsen (pdf), former head of the OLC, “particularly when advising the executive branch that in essence it could act contrary to federal statutory restraints.”

Current OLC director John P. Elwood (pdf) contended that current OLC disclosure policy “is consistent with the approach of prior Administrations.”

Brad Berenson (pdf), a former associate counsel to the President, articulated “legitimate interests in secrecy” and cautioned against disclosure initiatives that could have unintended consequences.

Prof. Heidi Kitrosser (pdf) explained the constitutional framework within which secrecy disputes take place and urged more “effective congressional oversight” to restrain abuses of secrecy.

Attorney David Rivkin, a frequent defender of Administration policies, said that the “law of war” paradigm with all of its attendant secrecy remains the appropriate one.

Sen. Sam Brownback expressed skepticism about new disclosure requirements, while Sen. Sheldon Whitehouse probed the destabilizing implications of the Administration view that executive orders can be “waived” by the President without notice to Congress or the public.

The prepared statements from the Senate hearing are available here.

For all of the differences of opinion, there was also a provisional consensus that the executive branch should be required to report to Congress when it significantly interprets or reinterprets a statutory requirement.

Chairman Feingold announced that the Office of the Director of National Intelligence had notified him that several long-sought opinions of the Office of Legal Counsel concerning interrogation of enemy combatants would be provided to the Senate Intelligence Committee and possibly, in some form, to the Senate Judiciary Committee. Sen. Feingold said he would continue to seek public disclosure of the opinions, a move that is not currently contemplated by the Administration.

Federation of American Scientists: http://www.fas.org/blog/secrecy/2008/04/secret_law_deb.html

In Memoriam: John Archibald Wheeler

John Archibald Wheeler, who died on April 13, 2008 at the age of 96, was one of the great physicists of the 20th century. Not only that, he was one of the great minds of the 20th century.

In 1933, at the age of 22, Wheeler went to Copenhagen to study with the great Danish physicist, Niels Bohr. It was the beginning of a collaboration that was to last until Bohr¹s death in 1962. In 1939, in Princeton, Wheeler and Bohr came up with the “liquid drop” model, an explanation of the way fission of the atomic nucleus occurs which became the basis for building the atomic bomb.

That same year saw the first of Dr. Wheeler¹s disagreements with Robert Oppenheimer when Oppenheimer, working with Hartland Snyder, produced a theory of the way stars die. While at first he rejected the theory, later on, after it had been mathematically vindicated, Wheeler accepted it and gave the collapsed star its name, the “black hole.”

Wheeler unintentionally played a fateful role in Oppenheimer¹s career. In 1949 and 1950 the two men, who were both based in Princeton, differed over the wisdom of developing the hydrogen bomb and, in early 1953, the Joint Congressional Committee on Atomic Energy, under the aegis of its staff director, William Borden, produced a paper purporting to show that Oppenheimer had tried to delay development of the weapon.

In violation of secrecy regulations, Borden entrusted a ten-page condensation of the paper to Wheeler for vetting. But Borden reckoned without the scientist¹s well-known absent-mindedness – Wheeler lost the paper on a night train from Trenton to Washington D.C. The document, which contained highly classified secrets of the hydrogen bomb program, was never recovered, and when President Eisenhower learned after his inauguration that secrets of the atomic energy program had been compromised, he subjected his top atomic energy advisers to a withering display of anger.

Months afterward, in what may partly have been an effort to repair the damage to his career, Borden, who had long harbored doubts about Robert Oppenheimer, wrote a letter to the FBI charging that Oppenheimer’s opposition to the hydrogen bomb had been motivated by disloyalty and that he was in all likelihood an agent of the USSR. Borden¹s letter, dated November 7, 1953, led to the 1954 security proceeding in which Oppenheimer was deprived of his security clearance.

The punishment suffered by Oppenheimer for no known breach of security contrasts sharply with the treatment accorded Dr. Wheeler. He continued to be trusted by officialdom in Washington and in 1958, as adviser to the government at arms negotiations in Geneva, he accidentally left his briefcase in the headquarters of the Soviet delegation. The chairman of the delegation immediately called his U.S. counterpart and, with some amusement, sent back the briefcase.

There are rumors of still a third “Wheeler incident” involving a breach of security: if such rumors are true, the facts still are classified by the U.S. government.

The government continued to seek Wheeler¹s advice despite these unheard of violations, and not only because it felt safe with his staunch right-wing views. Atomic energy officials argued that his attributes as a physicist were so unique that he was indispensable to the H-bomb program. Outside government, in the scientific community, he was a beloved figure despite his politics and was viewed as a reconciler who tried to revive the comity that had existed worldwide among physicists prior to World War Two.

He had nothing against Oppenheimer: indeed, he was probably abashed at any part he may inadvertently have played in Oppenheimer¹s fall from grace. While the author was doing research for this book, he pointed her to documents at Princeton which he believed would show that Oppenheimer had tried to obtain university funds for Project Matterhorn, Wheeler¹s special contribution to the H-bomb program, and thereby disprove the old charge that Oppenheimer had tried to obstruct the program.

The first time the author interviewed Wheeler, he allotted time after a hectic conference to talk with her in a taxicab to the airport. The conversation went so swimmingly that he escorted her aboard his plane and, had the stewardess not swept her out moments before takeoff, she would have found herself conversing with Dr. Wheeler all the way to Houston. As she left the plane, he handed her a token to help her return home on the subway.

Personally as well as politically, Wheeler was extremely close to Edward Teller and, when Teller was ostracized among physicists for his role in the Oppenheimer case, Wheeler did his utmost to bring Teller back into the good graces of the scientific community. And when Teller died in 2003 Wheeler, aged 92 and more absent-minded than ever, flew across the country and delivered a memorial address that brought tears to the eyes of those who heard it.

Remarkable as he was as a human being, Dr. Wheeler was also without equal as physicist and philosopher. During the 1950¹s he fell in love with general relativity and spent the rest of his life trying with Einstein and others to reconcile relativity with quantum physics. In the effort, as he put it, to “push gravitation physics to its limits,” he wrote three major books, including, with his students Charles Misner and Kip Thorne, the 1,300-page classic, “Gravitation.” Trying to divine what he called the “deep, happy mysteries” of nature, Wheeler claimed that he owed most of his inspiration to his students, and they responded in kind. Kip Thorne, for one, called him the “most influential mentor of young scientists” he had ever known.

In his autobiography, Geons, Black Holes and Quantum Foam, Wheeler wrote, “I have to admit that I never stop thinking about physics. I have never been able to let go of questions like how come existence? How come the quantum? What is my relation to the universe and its laws? Can spacetime be all that there is? Is there an end to time? I have not been able to stop puzzling over the riddle of existence. There is no definable point where the truly curious physicist can say, I can go only this far and no farther.”

There will be a memorial service for Dr. Wheeler at the Princeton University Chapel on Monday, May 12, at 10 a.m.

Protect US from the "Protect America Act"

In 1954 the AEC held hearings to determine whether J. Robert Oppenheimer’s security clearance should be revoked. Unknown to him or his attorney, the FBI—authorized by J. Edgar Hoover—was illegally wiretapping his nightly conversations with his lawyer and providing the transcripts to the prosecutor every day.

In 2008, Congress is fighting the White House over legislation protecting
warrantless domestic spying. An amendment to the Foreign Intelligence
Surveillance Act (FISA), the so-called Protect America Act (PAA) was signed
into law in August of 2007. The PAA eliminated, among other things, FISA's
requirement that government agents procure a warrant before tapping into the
phone and internet communications of people "reasonably believed" to be
outside the United States.

Because of concerns about its long-term implications, the PAA contained a
sunset clause ensuring its expiration on February 17 of this year unless
Congress approved it a second time. It sailed through the Senate two weeks
ago, but faltered in the House. Frustrated by this failure and insistent
that the new version must contain legal immunity for phone companies that
help the government spy, the Bush Administration is now scheming to
bifurcate the measure in an effort to bring it back before the House for
another vote in the coming days.

If the House caves this time, the PAA will become permanent. The government
will have access to Americans' international phone calls and e-mails with no
oversight and no accountability.

The Oppenheimer case teaches us the kind of damage that warrantless
wiretapping can create for unsuspecting Americans. If a spying bill is to pass, it
should only be with the constitutional guarantee that the government must
obtain a warrant in order to spy on an American. Without such protections, the ruin of J. Robert Oppenheimer will merely presage the ruin of many other innocent Americans.

Use of Nuclear Weapons – What have we learned?

One of the most important functions of the study of history is to guide us in the present to avoid the mistakes of the past. The 1949 Advisory Group which Oppenheimer chaired, and which made recommendations to Truman on whether to pursue development of the hydrogen bomb, concluded that the h-bomb met no useful military purpose, and should not be pursued. Truman disagreed, and the arms race was born.

Here is what the current Presidential candidates are saying about the use of nuclear weapons:

Hillary Clinton (D), on 1/5/2008, at Manchester, NH, in the Democratic Candidates Debate, on the use of nuclear weapons:
"You know, deterrence worked during the Cold War in large measure because the United States made it clear to the Soviet Union that there would be massive retaliation. We have to make it clear to those states that would give safe haven to stateless terrorists, that would launch a nuclear attack against America that they would also face a very heavy retaliation."*

John McCain (R), on 8/5/2007, at the GOP Iowa Straw Poll Debate, on the use of nuclear weapons:
"It's naive to say that we will never use nuclear weapons."*

Barack Obama (D), on 8/2/2007, from the Associate Press, on the use of nuclear weapons, while responding to a question by the Associated Press about whether there was any circumstance where he would be prepared or willing to use nuclear weapons to defeat terrorism and al-Qaida leader Osama bin Laden:
“I think it would be a profound mistake for us to use nuclear weapons in any circumstance involving civilians. Let me scratch that. There's been no discussion of nuclear weapons. That's not on the table.”*

If you are interested in a historical viewpoint, take a look at these documents on my Web site at http://h-bombbook.com under For Professors and Researchers/Document Archive/Oppenheimer: Oppenheimer’s Farewell Speech to Los Alamos, November 2, 1945; Atomic Weapons and American Policy, July 1953; and the No First Use Appeal of February 14, 1950.

What are your thoughts? What lessons should we have learned from Oppenheimer and history?

*Source: Nuclear Age Peace Foundation (http://www.wagingpeace.org/menu/resources/surveys/2008_pres_cand/cand_quotes_page.php)

New Web site fights secrecy and lies

Tom commented that “secrecy is the great theme of Oppenheimer’s life and of American history in our time.” (See comments under “Our Nuclear Past and Present.”)

Indeed, secrecy fueled the revocation hearings which destroyed Oppenheimer’s credibility and fanned the fears which gave birth to the early arms race. Those facts have been hidden from the American public for decades, by denying the public access to classified documents which would have revealed embarrassing truths.

Now, declassified documents and private papers of key players in the Oppenheimer hearings have been made available to the public for the first time on my newly launched Web site, http://h-bombbook.com/.

This Web site is based on my book, The Ruin of J. Robert Oppenheimer and the Birth of the Modern Arms Race (Penguin: 2006). The Web site includes the private papers of participants and newly declassified U.S. government documents which show how critics of military policy and military secrecy were silenced at the height of the Cold War, allowing the arms race to proceed unchecked, creating dangers that still haunt us today.

Look at some of the study questions in the Study Guide section of the Web site. Look especially at the last question, “Describe the relationship between scientists and the Bush Administration today? What are some of the principal areas of disagreement?” How would you answer that question? Which of those disagreements date back to the birth of the arms race? Are there new areas of disagreement that didn’t exist in 1945? Explore the Web site before you answer.

Click on “comment” (on this blog site) under this post to join in the discussion.