The winged feet of Hermes, messenger of the gods. / Photo by Eric Chan.
,  December 10, 2014

On Shooting the Messenger

The winged feet of Hermes, messenger of the gods. / Photo by Eric Chan.
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The concept of “shooting the messenger” predates actual shooting by millennia. It is said that the ancient Greeks so dreaded the receipt of bad news that those charged with its delivery along the proto-postal routes that birthed the modern marathon were at mortal risk upon arrival. Back then, killing a bearer of unwelcome reports was little more than a lashing-out—temporarily satisfying, but operationally useless. What was done was done. In offing a messenger, one could not hope to change reality.

In modern times, this dynamic has changed. No longer is the proverbial messenger a secret conduit for official business; rather, she is an individual journalist or a media outlet, a whistleblower, or an advocate who seeks to expose official secrets. Reality, as Karl Rove too accurately observed, is not merely manifested—it is created by those in power, in real time, through the exercise of control over both information and informers.

Edward Snowden—who was justified in fearing the worst in Hong Kong, and then Russia—is only the most obvious recent example of the maligned whistleblower. When Snowden revealed the scope of the National Security Agency’s surveillance program, he followed in the footsteps of previous NSA whistleblowers William Binney and Thomas Drake, who both had brushes with the wrong end of a government gun despite having not disclosed any classified information at all.

But the government’s fire is not always ballistic; perhaps it is even more dangerous to our democracy when it is not. Over and over, especially when national security is involved, we have seen the government issue threats both overt and covert to stymie those who work to expose illegality and immorality—to expose, frankly speaking, its great shames.

Those threats have once again approached deafening decibels in recent days. In the run-up to Tuesday’s release of the Senate Select Committee on Intelligence’s long-awaited report on the Central Intelligence Agency’s post-9/11 use of torture, veterans of the national-security state rallied to preemptively blame the release of the report for any terror attacks that occur in its wake. “This will cause violence and deaths,” said representative Mike Rogers, head of the House Permanent Select Committee on Intelligence. “This will be used by our enemies to motivate people to attack American and American facilities overseas,” said former CIA director Michael Hayden. Even secretary of state John Kerry reportedly raised the specter of terrorist reprisals for release in a private phone call with SSCI chair Dianne Feinstein.

And last week, the Miami Herald reported that the government filed an appeal challenging a district court’s October order making public thirty-two videos depicting force-feeding at Guantánamo Bay. The government’s argument? That disclosing the videos—which, in the government’s view, depict merely “lawful, humane and appropriate interaction between guards and detainees”—would inflame “persons and enemies hostile to the United States and its detention of enemy belligerents at Guantánamo Bay.”

Both of these are versions of “shooting the messenger,” and in both, the shooters are classically misguided. It goes far beyond willful blindness, and reaches bad-faith disingenuousness, to insist that a nation’s honest reckoning with its horrific past will instigate acts of violence when the fault for any such response lies so plainly at the hands of those who authorized, ordered, and carried out those acts. Yet the government has made the same argument—both in the press and in court—time and time again, almost without variation, to prevent the disclosure of its dirty secrets. The Pentagon Papers. Iran–Contra. Evidence of torture at CIA “black sites.” Photographs of torture at Abu Ghraib. The targeted killing of suspected terrorists and confirmed innocents, including American citizens.

Now, there is little doubt that the government’s argument in at least some of these cases is, to a certain degree, descriptively true. It is not wrong to claim that at least some harm to the country’s national-security and foreign-relations interests may flow in the direct aftermath of the disclosure of state secrets. But while the government would like that to be the end of the matter, it is not.

In November 2001, Vice President Dick Cheney articulated what Ron Suskind later termed the “one percent doctrine.” Though couched in the language of probability, the approach was in essence a call for unbridled certainty. Under Cheney’s model of threat prevention, the government must act as if it knows for certain that a “low-probability, high-impact event” will take place; stop it all, at all costs. The appeal of such an approach is not difficult to see, especially for those national security officials who spend their daily lives trying to prevent attacks against the country, and who are judged caustically after the fact for even inevitable lapses.

A statue of the Greek god Hermes in Jakarta, Indonesia. / Photo by Bonita Suraputra.
A statue of the Greek god Hermes in Jakarta, Indonesia.
Photo by Bonita Suraputra
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But there is something intoxicating in this approach to risk, and the government has now been hitting this sauce a little too frequently, for more than a decade now. The “one percent doctrine” comes with costs that the government would rather not acknowledge. When evaluating the value of certain information to the public, it is one thing to weigh immediate security more heavily than long-term threats to the democratic order (and no less trenchant, the democratic soul). It is quite another to pretend that those long-term threats do not exist. And that is where the government’s recurring argument that the messengers, rather than the message, are liable for the violent consequences of national disgraces, breaks down.

Under the government’s view, because the enemy “can’t” know something (or, in the cases of torture and force-feeding, can’t see documentation of something it already knows), neither can we—full stop. However, as Cori Crider, one of the attorneys for Abu Wa’el Dhiab—the detainee who sued for the public release of the force-feeding videos—remarked to the Miami Herald, “By that logic, think of all the government scandals that never would have seen the light of day.” Would we have been better off not knowing about the massacre at My Lai? Not having seen the videos of American soldiers urinating on Taliban bodies in Afghanistan? Not learning that the NSA has a database of all domestic phone calls? We might well have been safer—but would we have been better off?

These may be especially clear cases, but what makes the country “better off” is not an easy question to answer with great confidence all of the time—and, as Bart Gellman has observed, no person or institution can answer them alone. However, the government should not be able to evade an acknowledgment of its moral culpability in creating these sorts of dilemmas by blaming messengers like, say, the Times and the Post, the American Civil Liberties Union, Glenn Greenwald, John Kiriakou, and Abu Wa’el Dhiab.          

Distressingly, though, it largely has. In any society with a working moral compass, arguments like these would be dismissed out of hand. But last year, a federal court rejected a lawsuit challenging pervasive surveillance of Muslim communities in New York and New Jersey by the New York Police Department by holding that the plaintiffs—members and leaders of those communities—did not have “standing” to complain about it. The court reasoned that the plaintiffs’ injuries were not actually the fault of the NYPD—they were the fault of the Associated Press, which exposed the police department’s surveillance:

None of the Plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents. Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. . . . The harms are not “fairly traceable” to any act of surveillance.

If the government seeks to keep a secret, this logic holds, the fallout from its exposure are the messenger’s alone to bear. And this sensibility is now pervasive throughout our branches of government. Shortly after the initial run of Snowden revelations, Chairman Rogers of the House Intelligence Committee argued that the entire scandal was contrived. If only Snowden and Greenwald had stayed in line, he said, Americans wouldn’t have given the NSA a second thought. “You can’t have your privacy violated if you don’t know your privacy is violated, right?”

Rogers was not going rogue, and this was no gaffe. He was merely restating government policy—a “Kinsley gaffe” at best—that the real story was about Snowden and Greenwald, not unprecedented global surveillance. A recently declassified transcript of a 2008 proceeding before the Foreign Intelligence Surveillance Court of Review betrays the same sentiment in the pre-Snowden era, with one judge asking of a secret surveillance order, “Well, if this order is enforced and it’s secret, how can [anyone] be hurt?” In other words, harm does not flow from what the government does; it flows instead from what the people know. Again, it’s not that the government doesn’t have a point; it’s that the government ignores the even bigger ones in the service of making it.

The failure of the law has hastened the calcification of this viewpoint in the very bones of government. Over the past forty years, judge-made rules concerning who may sue the government, and over what—rules that have nothing to do with whether government actors actually committed legal violations—have steadily prevented more and more citizens from holding their government to account in courtrooms, even in the rare instances in which misconduct has been publicly exposed. Generations ago, the Supreme Court made clear that government officials “should be made to hesitate” when contemplating unlawful action—that the actors (not the reactors) bore the burden—and that courts could be effective instruments in uncovering government abuses done in the name of national security. But those promises are nearly hollow, and judicial oversight of national security is now a nearly dead letter.

And for that reason, we need messengers more than ever. Perhaps more than the particular revelations and documents and lies he has exposed, Edward Snowden’s most lasting contribution will have been catalyzing, in dramatic fashion, a renewal of the long collective process of filling that judicial void. In the absence of accountability in the courts, Snowden has given government officials renewed reason to think twice when they act about the message they intend to send.

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