 Jack you're the shattuck professor of law here at the law school author of the terror presidency and someone who lived through many of the moments described here and Is it right that you ran the office of legal counsel the president's lawyers lawyer Whose purpose is to advise on exactly these matters? So as you were watching this film, I don't know why this sounds like a cross-examination. It's not meant to be As you were watching this film, what were you thinking? Second time I've seen the film and this version was more powerful than the earlier I went into government Not being not knowing much or not having thought much about government secrecy And I did a lot of things in secret when I was in the government most of the things I did Almost all the things I did concerned classified information And I was too busy in the government to To reflect upon The secrecy system, but I have to say in reflecting on its sense. I think it is I've come to think it's the most corrosive Aspect of our government and the thing most corrosive to our democracy, I think this is obvious and I think the film captured just perfectly the pathologies of the secrecy system and the Paradoxes of the secrecy system. We must have it and yet it's the worst thing we can have I've actually become something of a hawk I guess against secrecy in the government. I think that This is an area where President Obama said that we in his inauguration speech something to the effect We don't have to trade off liberty and security. I actually don't think that's true in a lot of areas But this is one area where we can have enormous enormous improvements in minimizing the secrecy system But actually enhance our national security and I so the one thing the film doesn't do however And I think it's really hard is to offer prescriptions about how you balance these trade-offs. There are two types of big picture questions one is How do we design a better maybe optimal system for minimizing secrecy keeping secret the things that really should be secret Giving the proper incentives to keep those to make things secret that should be and not giving terrible Over incentives to keep things secret and then to and I actually think there's there's a lot of good ideas about how to do that the hard part is how to implement it because No one in the government has much of an incentive to do it. That's the problem So you didn't talk much about prescription. It's really hard. It's really hard to capture in a film But I thought you captured the trade-offs and the paradoxes and pathologies just brilliantly. I really commend you. Thank you. I Can die happy Happy that is I mean one thing to say about a prescription and that it's come up is There is a bill coming to Congress this year. We think By Senator specter sponsored by Senator specter and Kennedy that would require I don't know if this has been if this is something You all know but that would require The government to show what's a secret if they claim the state secrets privilege that somebody would have to look at it It would have to be shown to the courts or somebody with clearance It couldn't just be claimed and that was enough and that would be that would be part of something that would go a long way to helping I think I think you would that would help a bit on the state secrets privilege But the state secrets privileges It's in a very important part of the secrecy system, but it's a very small part of the secret system It's gotten much more prominent during the Bush administration, but it's actually been going on for you know a while and But that comes up when something reaches court And that comes up after we found out something that leads us to take someone to court. There's so much So much just unbelievable over classification of information that Tweaking the state secrets privilege would would never get at there's there's a Moynihan report in the 1990s That is really I just commend it to you and just type in Moynihan report secrecy that you must have read Yes, and and I thought it's prescriptions It lays out seven or eight things that could be done It wouldn't solve all the problems, but it would cut out a lot of the unnecessary secrecy that and So I think we actually knows and one of the things is minimizing the state secrets privilege But there's other things we have to do in terms of how things are classified how things get declassified who gets to Classify what the criteria for classification are That all that stuff needs to be fixed and we kind of know what we need to do to make progress, but I mean and This administration and the Podesta was on that commission. I think that's right and he understands the evils of secrecy So maybe there's hope But you know every president promises to have a more open government and then doesn't do a very good job of doing it So but so I think that that's an important Innovation but I don't think it gets at the heart of the secrecy problem and one of the things that I think we Came to feel very strongly in the making of the film was that secrecy Always accrues power to the people that hold it I mean and that the temptation to a grand eyes power by increasing secrecy whether it's individual or a Department or an agency or a branch of the government I mean at every level of an every scale from the individual all the way up you have the temptation to Keep people from interfering like like the example that General Groves Offers us inadvertently in the in Justifying why he wants to have the secrecy and he lists the Japanese and the Germans and the Russians and then he says and we have to keep it secret from Congress because they could interfere with What we want to do and I think that that that sense of secrecy is a way of stopping Inquiry stopping objections stopping the check of power is is in some sense Sort of broader level what what are the things that's that's hardest to combat because it keeps coming back and you know We try all sorts of procedures limiting the time that secrets can be kept secret at the at the back end Limiting the number of people who can classify at the front end I mean there have been lots of procedural attempts, but it's tough Given the overarching drive towards the aggregation of power that secrecy seems to to afford Professor minnow within a kaleidoscopic set of scholarship among other things you've written about truth and reconciliation commissions and The capacity of a society to be able to own up to what it might have done and whether that actually Leads to a path forward. I Open to you. What was your reactions to the film? Well, I've seen the film Many times, but I have to say this time I was actually struck by more by the arguments for secrecy that I have been in the past I think you've added some more material on that and you know the cell phones Some have been lot in the story is really devastating. It is completely devastating and what I was thinking was that the media Plays this crucial role as watchdog and yet in part When there is more trust in the government, they can actually Understand better what the line should be and at the moment We've had a government that has betrayed the trust and so there's no reason to believe anything anyone in the government says and I actually think that a more responsible Partnership between the media and the government could be developed if there was more openness By the government and so that then when there's an argument this really needs to be kept secret people would believe it So that's one thing I felt very much watching at this time two other things one again very much moved by the arguments for our security and Yet thinking that there needs to be a disaggregation of the issue of accountability and Publicity because accountability often is helped by publicity, but it public is not the only way to have accountability and the numbers of ways in which again the government for the reasons that Peter says the desire for power the desire to cover up mistakes all of those things shields internal decisions from Review second guessing another eyes All of that could be done with behind avail and to some extent that's what the FISA court is supposed to do And that's what there are institutions Including in-camera proceedings in court that are designed to be able to provide accountability while maintaining secrecy But the incentive that so many people have is don't look don't look don't look including you know recently under the FISA courts We're not even going to go we're not even going to go so somehow I guess I think it would be really helpful if there was an insistence on accountability even when there is a justification for Privacy and secrecy and the last thing I'd say is in the vein of the Truth and Reconciliation Commission It has struck me that One of the dangers of any kind of secrecy regime is that the justifications offered To ourselves about why we need secret secrecy are never revisited. We never look at it again Were we right? Did we make the gamble correctly? And so somehow there needs to be kept a Story kept the materials so that when the time comes and it's possible to look back It actually can be reviewed and I guess I feel that even now even now in this country We need to somehow make sure that there isn't a massive shredding of material All of those things that need to be kept separate secret keep them secret But somehow make them available to be opened later on I wanted to ask Jackie a question about that particular question because It's come up a lot about issues of say presidential daily briefs what the president gets every day about what the threat environment is What do they know? What are they thinking about? Clearly those have to be kept secret For a long time. I mean just to give people the room to make decisions and to think clearly without so much scrutiny but In Martha's point if they were say after 25 years or some amount of time made available Is that a good thing or is that not a good thing? I think it's a good thing Unambiguously a good thing after a certain amount of time. There are very few things There are lots of different reasons we would and you actually touched on a lot of them in the film for keeping things secret and different Reasons for keeping things secret may justify different time periods for keeping them secret But after a certain period of time I think it is crucially important that it be revealed and you'd be surprised in what would be revealed in both directions I mean the Robb's Silverman Commission on weapons of mass destruction had this wonderful paragraph where it said and this is this included people like Patricia Wald on the Commission and Senator Robb. This was it was a bipartisan commission and talking about secrecy and the problem of leaks it said there are in effect It said there are in the last so-and-so years. We've had hundreds of we've we've had Dozens and dozens of leaks that have caused hundreds and hundreds of million dollars of damage and countless damage in our relations with others and Tipping off our enemy and the like and the evidence for this was of course in a classified annex They couldn't explain they couldn't provide evidence. This is part of the problem actually I think that a lot of people don't believe with quite understandably that there's a problem with leaks because you see the leak and you Don't you've got a good job of coming up with a few of the examples where we know That something leaks and then the information that we have about the enemy stops People in the intelligence community community as some of the people you saw think it's a much much greater problem than they've been able to reveal But those secrets stay lodged forever. So I think So I think that we can have a lot lot more openness about past events and I think they would be revealing both about the mistakes the government made things they should have done but it also would be revealing about how how Cost of the secrecy system and the leaks that are caused by the secrecy system are one more thing about it if I could just say about accountability I agree with Martha that There are ways to have accountability in secret and even minimal scrutiny and people say the FISA court is not much of a check on the Executive branch and that's just not true Eat because they approve 99% of the applications or something the work that goes in to ensuring that they say yes And and having to convince another set of eyes has an enormous ex ante effect on the quality of the deliberation The same thing with informing the intelligence committee is if I'm convinced that most of the really unfortunate legal analysis and rhetoric and some of the most harmful Memorandum that came out of the Justice Department Never ever would have happened and we would all have been spared much pain and damage as a country It's just another set of eyes that looked at that in another institution And so I think there are ways of I think there it can be accountability of things that are genuine things that are genuinely secret Problem is we also learned this in the last eight years Those depend on the good faith of the executive branch because you can only have another set of eyes If the executive branch shows another set of eyes and we learned that it's very hard to legislate that they have to want to Do it they can keep things From the other set of eyes that they want and make terrible mistakes So I agree that in theory that accountability and you can have a form of such substitute accountability and secret It's not perfect, but it's a lot better than people think But it's it's hard to force if the executive doesn't want to do it I just want to comment on one thing that each of you have said One of the people who wrote the reports on the leaks was Jim Bruce is in the film He wrote his classified CIA report Examining what leaks had happened and how many there were and where they came from and what happened what were their consequences and He found so there's a declassified version of that report which has been released and even a Redacted version of the classified portion. How recent is that? How recently was it released? It was a point in the last couple in the last five years. I think so he said that So he's furious about the press. I mean he's off the record said I want SWAT teams to go after the press He's this is not somebody who likes the press was it really off the record But but he said you know So when I was one time I was talking to him on the phone and I said well what where do most of the leaks come from and he said Oh about 80% of them come from the executive branch So I said well what what is the executive branch doing and he said these are policy interventions They leak to get something through that they want to get through So I said well if they're 80% are from the executive branch And you know and then of the 20% only a fairly small fraction from the press What why go after them and he said well most of them you can't because if if more than sort of two Two to two people know you know or know something you never get to the bottom of it So it turns out to be complicated and that brings up a question that that Martha was asking about the press about how in a better political environment the press could function and and Gellman in is has been back and forth with the administration over time and he's one of the things that he said Not in the film is that there was a change over the years and that in you know earlier on or even earlier on in the Bush administration But before the Bush administration, you know if you had a story that involved Saying something that had some classified aspect to it you would go to the officials and say I'm gonna write this story It's not that I'm gonna not write this story But what's the problem and you know let's talk about it So in the case there's an example of there's a ring around Washington designed to keep people from bringing in Bad radioactive things to the city which we all hope they're trying to stop from happening So they built this ring they tested it and most of the stuff got through see so Gellman decided to write a story about this And he called up and you know various agencies and said I'm gonna write this story And it went all the way up to Condoleezza Rice and and and she said to him You can't write the story and he said well, I'm gonna write the story. Everybody knows you've got checks on You know various kinds of radioactive counters I'm gonna write the story and she said well They said well, what's secret and they went back and forth and eventually various experts got involved They said what secret is the particular failure mode? We where did these that what actually failed in this and he said okay, I can live with that That's not the important part of my story. I don't need to know that you know 6.3 inches of lead didn't find you know So so I think there are lots of cases where you can have good responsible reporting and Not get us all killed in a radioactive mess So I think that you know that that kind of issue seems to me You know, I don't know if it's solvable as an abstract theorem But I think in the practical reality of it if somebody had said, you know Do we have to publish the article in the LA Times that we're raising in the middle of raising a Dead Russian submarine from the bottom with nuclear Materials in it and code books and everything else that didn't need to be published in the middle of that operation. That's crazy But I mean, that's what we pay the CIA to do is to do things like that So but I think on the other hand, you know when there's fun, you know the disclosure about weapons of mass destruction or to torture it I'm a grave. I mean the newspaper should do more of that And I I don't think it doesn't seem to me impossible that responsible reporters can work with Responsible government agencies to work it out, but I don't know if there's a general solution to it How much of the disconnect here in your experience and talking to so many people no doubt for hours that didn't make it into the movie Is kind of a cultural or social Disconnect and mistrust between them rather than just we can sit down and work this out and surely if we were just arguing it out as an electoral matter we could agree were there people on the More pro-secrecy side of things who would happily defend the Reynolds case on general cultural principles even though it appeared there was nothing ultimately in there that was It couldn't be released and on the other hand are there people from the media establishment who think the satellite phone story Was the press doing its job correctly rather than shouldn't have gotten through. I'll jump in at least to initially respond The Reynolds people after they read the report tried to revisit the case and tried to get the Supreme Court to open it up again And they were they were turned down And a lot of the arguments we heard about that and about the Reynolds case was that there's no way to really know What's the secret on that report to our eyes? Maybe but you know a b-52 at twenty thousand feet You know in itself is revealing of something of our capacities that this whole notion of Not sources, but methods gets revealed, you know inadvertently in such kinds of you know If you see a tank everybody knows the Russians have a particular tank And so they put the tank on the front page of the Washington post But the angle that they took the picture of that tank shows that they had the capacity For satellites to see at a certain resolution at a certain height You know demonstrates that we have this this method for gaining Information and the intelligence community goes crazy when such things get revealed and the reporters don't know so the argument from the intelligence Community side is that the reporters aren't just don't know well enough. They're perfectly well intentioned They can read it and there's nothing apparently so but buried in that are secrets that we can't know about and only they can know About and then once you get to that once that said all conversation stops because you're basically saying you can't possibly know You're an idiot. You know he says no, you're the idiot and then it's all over with so You know, I think I think that we heard a lot of people say such things and kind of look at us knowingly like How can you possibly know we went Peter and I went to Langley and tried to talk to the CIA I tried to get CIA to talk to us and you know, I can't tell you how dismissive and disinterested they were this Harvard Professors where there's stupid ideas. I mean, you know, they couldn't have been dripping more with contempt And of course, you know, they have to cover as a George Mason Exactly But you know, the other thing that's good about the CIA is they have a gift shop Hard to know just great great stuff little pens that it's just fantastic stuff things that disappear and all kinds of stuff your kids Who knew who knew? And on the other side of things on the other side. Yeah, there are people Who say I mean for instance Tom Tom Blanton believes on on various grounds that the satellite store Is is bogus and that bin Laden would have known anyway that they were cracking it And maybe it had been published earlier or maybe it was the bray to get under Clinton where they use cruise missiles to hit one Of the arcade of bases so that would have shown them that it was stupid to use a sad phone Even if you weren't decrypting it because you could find out where you were and I mean, you know I mean there so yes, there are There are people on the press side who think we've never met a secret that in the end They didn't think really should be disclosed and there are people on the government side who thinks that you know They've never met a secret that should be disclosed and we and we did hear both of those sides. I mean in the film Mike Levin from the NSA is pretty close to the view that Rob was citing of saying you can't know the press can't know Nobody who's not inside this is the fellow who held the same post at the NSA for about 30 years. Yes Yeah, so who's watched the whole thing and he you know his view is you know There are lots of different kinds of secrets in different agencies also. I mean now we're classifying infrastructure I mean Garfinkel was head of the information security oversight office was horrified He spent his whole career He ran that office for the whole time and he was his job was to try to keep secrecy from getting out of hand and all The different other agencies and he said he worked all the time to stop Infrastructure from being classified and now infrastructure just everything is a potential target Everything could be classified every every water main every electrical main every telephone switch station I mean you you know once you start down that avenue and homeland security begins to classify It mushrooms out when I take it that that zoom in on Guantanamo Bay that looked like a google map or google earth Was in fact blacked out on google earth or you know that alpha effect. We did it. We did it. We blacked it too bad, right? It's kind of cool that there'd be this one little place you couldn't like the vice president's Peter you've you've told me before about how the declassification project was making progress And now it's totally back. So can you explain that? So in the in the clinton administration, there was a big batch declassification order. I mean a very big effort to get declassified Unbelievable quantities of billions of pages of of documents and of historically significant documents. It wasn't just you know general You know general tough guy slept at this hotel on this night and it was classified that night So nobody would you know kidnap him. This was really These were things that were supposed to be of broad significance and there was there was a default Of declassification that was put into effect through various means like Bringing way down the number of original classifiers to people that can say This you know it is secret that 97 people are in this room and then every subsequent document that makes reference That gets the classification level of the original classifier. So by restricting it used to be that every You know every bird colonel wanted original classification authority and a special authorization for their projects because it became a prestige question Right, I mean Well, did you have a special named secret project and could you create the secrets around that? so those were highly limited in in this period and That was one thing and the other was as I mentioned before limiting the on the distal end How long things would remain secret before they default opened and then again with the freedom of information act And something that obama's tried to intervene on early on in the early in the earliest days Was to say it was to restore what had been the case which was that Originally was that that the things should be open if they can be and the bush administration had sort of turned that around and made the Default keep it secret unless there's good reason to open it as opposed to keep it open unless there's good reason to close it So that the in various ways I mean some of them have to do with the area of classification Like the like infrastructure some of them have to do with the default on free on freedom of information act some of them have to do with the With with areas that are sort of penumbral to secrecy these restricted, but Unclassified documents so now that no one knows what those are But every agency now has a category defined in completely legally random ways That say, you know this report is not secret But we're taking it off the library shelves and we send an order out to the libraries like the ones we showed in the film and say Remove and destroy and then the librarians have sort of they mean they have there's sort of a sami's dot Collections that some of them are trying to sort of keep copies of things just because librarians don't like burning books they just don't like it and So but there's been a struggle over that but that we don't even the we're able to quantify because of the work of the of this of the office of the information security oversight office Some idea although it's hard and in How do they tell because I I mean I saw lots of classifications going on that they never would have known it They must have some algorithm where they do and right. It's an estimate, but it's a secret But but these but these unclassified but restricted documents no one has any idea No one knows the order of magnitude. We have no idea what's been taken off Um, the abu grave example is powerful in a number of ways um, some lessons people might take from it are The people who engaged in those activities didn't seem to think them very secret They happily took photos of it and circulated it among family and friends And an ancillary point would be at some point. There's a whistleblower judge posner for example has weighed in several times on issues of secrecy And been not concerned at all because he says if anything truly terrible is going on There'll be a whistleblower and see abu grave is the kind of thing that would show it I suppose too the primary argument made as to why those photos should not have been allowed to be public And I guess why there's even a handful of additional photos that still have not been made public Are because it would harm the security of the united states for those photos Exactly because it's so gripping to get that original document the way that the person who got to see the molotov ribbon Drop packed fell over because of it or the woman who got the report that finally confirmed her father was dead in that plane crash That because of that power is the reason to keep the lid on it Maybe there could be accountability as martha was saying without having to release those photos And you can still have a report from general to guba or somebody that says mistakes were made bad things happened We're going to discipline the following people But We don't think it's any interest of the united states to show those Photos and I don't know if there's Any reactions or thoughts on that Yeah, what is the question should we show those photos? Should they be classified? I think it's jonathan's question. I think you're asking are there reasons to uh keep secret Uh activities where it's not because it's classified is because it actually Would be embarrassing or could otherwise impair our strength in the world our security the test though I mean, I I'm not gonna get the exact language. You might know it for the various degrees of classification are something like Grave threats to the national security That is an incredibly subjective standard, but it's easy to imagine those photographs coming underneath it Right, I mean if you could make a pretty Possible causal claim that more pictures would lead to certain activities that would And or more terrorists and that under that definition it would clearly classify But this was exactly nixon's argument That if I do it, it's not illegal because i'm the president and I have to have I have to have the credibility of the office You're undermining me. You're undermining the the stability of that. It's just pointing out that those are the definitions We have and it's people have had a very hard time coming up with more precise definitions That would get at that I think it's a hard call And my feeling is that If we think about the content of secrets, we're never going to succeed because what is a secret Is technologically and historically and politically constantly changing right? I mean who could have thought and you know When those laws were being formulated that we would be dealing with the kind of digital world that we're in now So I think we have to think in terms of these questions of oversight I mean what you were saying another pair of eyes and I think that though the film isn't prescriptive in a specific legislative way We do come down pretty strongly on the side of Oversight because that it's not that oversight protects you from everything, but we know without oversight. It's a disaster So it's a it's a necessary but not sufficient remedy So it's oversight, but it's also process process in the In what becomes a secret how things become unsecret. Yes I think that You know after good and blanton at the level of prescription Want to argue exactly how you have implement this? I have no idea But they wanted to argue that there has to be a competing force at the moment that secrets are made That there has to be a kind of argument some something not just Yes, this is a secret and then stamping it and it doesn't have to show it But at that moment there's some competing element saying no, that's not a good idea for that to be a secret Just a moment of that and I don't know how you do that given how many secrets there are I don't know how you actually convene such a thing, but that struck me as very sensible. Yeah Why don't we open it up to reaction and questions from the audience? Tell us who you are if you feel comfortable with that. I don't feel comfortable with that My sorry my question is inherently unfair because it involves prognostication So I beg your pardon if You know if this is inappropriate, but I'm curious about something that The cia agent said When she mentioned that to journalists the The game of the secrecy is is a game or something like this I'm curious about it because I also think of journalism as a business and a failing business And my question has to do with the way that foreign correspondence and in-depth reporting are The budgets are being cut for these activities and traditional media is I guess an economic and environmental problem And so what I'm interested in is what your view of the future is do you think On the question of of accountability that you know a legion of bloggers You know doing very poor journalism, but you know their own you know kind of cowboy approach is is going to be a good thing I'm interested in kind of a prediction Well, I'll say two things I mean just off the top It seems to be going exactly in both directions that on one hand you have this kind of instantaneous response cell phone Taking pictures of things and putting them on the internet So you know something absolutely instantaneously bloggers responding surrounding a situation responding very subjectively not very journalistically Creating a kind of sensational and quite interesting and sometimes revealing But hard to know exactly what you're looking at on the one hand on the other hand you have documentary filmmakers like us Plotting along Over the years trying to fill in the blanks to make some sense of it You know so you have this like instantaneous response And then you have got this four-year lag time and we started secrecy before it was really a big issue And then it became a big issue and and it was a former now It's a new administration and we're still showing the movie and you know It's like it would be nice if we could work a little quicker and there were more money But there isn't and that's the way it is and there's something nice about taking that time But it seems exactly the opposite of journalism You know, it's like instantaneous and subjective or long term and reflective And there's this big middle that I think is missing and that will be a real problem And that I think is one of the things that the questioner was raising which is this sort of long-form journalism, which is I mean being hunted to extinction by the By the market and one of the things that I mean this experience I thought I'm sure you you have too is that when you first start Doing your rounds on the internet of newspapers and you go, you know to the Guardian and you go to the Washington Post and New York Times You have this elated feeling that there's this depth of reporting in the world and you and then you start to see It's the same story moving around and a story that occurs at, you know, nine o'clock And how are it says on spiegel dot de at 1015 and then it and then it migrates and it's on the Guardian And I mean you see this Circulation and there's actually not very much, you know in terms of the the in-depth reporting not that, you know somebody got run over in In in in a particular city one day I mean that there is a lot of reporting that's local in that sense But these big stories about the sort of structural features of the world that we're in I mean, it's I think that the the collapse of the long form of journalism Is really serious because derivative from that are all these other things that look independent But aren't television news for instance basically, you know more and more is just reading off the two or three papers of record and then Telling you it, you know reading telling you what's in the first paragraph So I think it's pretty I am worried about that and I think as robb says that that that's the space between robb's extremes You know the slow pokes like us and the and the speedy guys who are doing the the quick form blogging Martha well, I despair about the loss of a viable business model for investigative reporting And I don't see a solution other than people starting to have subscriptions. I'll sign up. I'll pay If a bunch of us get together and quite seriously We're going to have to come up with A business model of that nature at the moment the biggest readers of newspapers are other people in newspapers Which is a dwindling group and that's inadequate the only hopeful thing that I have seen And it's kind of bizarre is the fact of the internet means that devices of secrecy including protective orders in the midst of litigation Are easily surpassed by technology. So there's a protective order Someone posts the material on the internet. It's too late. It's over and there are court orders saying sorry There's nothing we can do about the protective order because it's out there. We can never retrieve all the pieces So that's one beginning kind of opening And then we need people to analyze the stuff that's now appearing on the internet So one such person is you jonathan who who has this project to understand what parts of the internet are blocked And as you know, you've been thinking about secrecy at the level of the of the web Have you come to some preliminary? I mean a preliminary conclusions about how effective these these these large scale blockings of internet information are I think they're Ineffective as against people who are bound and determined to get to stuff their government doesn't want them to see But as to the 80 percent of the people that If it takes, you know more than 30 seconds to load your facebook page, you're going somewhere else for your idle moment of distraction It's actually highly effective And that sometimes these technical blocks can be complimented by regimes of self censorship that get to the questions of patriotism of You know, are you wanting are you down with what the government wants of you? When you go to zones that uh, you know, you're not supposed to See christ segwayan So jonathan just outed me, but i'm a fellow at the bergman center and a blogger I write about security and privacy issues and i have a question i guess about the interplay between whistleblowers And the press, uh, you know, we depend upon whistleblowers to come forward, but we also depend on members of the press to bring us the stories The nsa warrantless wiretapping scandal I think is most interesting in this area because it was an engineer from at&t who first went to the la times Which sat on the story for a year and then decided not to do anything with it And then it was finally the new york times That then sat on the story and then finally did something after the journalist decided to write a book about it And in both cases it was because the editors of the newspapers met with people from the white house who said You know what? This is really bad for national security if you publish this So it seems like the mainstream press have a monopoly On whistleblowers because whistleblowers come to them whistleblowers never come to me as a blogger And i'm wondering given the coacy relationship between the executive And the press How do we make sure that we actually do find out about the stories and they don't get squelched I mean i'll take a prognost a little bit of prognostication here. I think they will I mean it may not be yet, but I think that as bloggers Become better known, you know, it there are there will be bloggers who have uh The clout to be an attractive magnet for people who have something that they want to get out when they get stymied by More mainstream and and central press. I mean that seems that seems inevitable to me You know the question um is interesting because it The issue is um What pressures are on on say newspapers to not To not publish when you see a cozy relationship with the government I mean that bears some in some looking at what you would exactly mean by that But the press is under such pressure Needs its you know needs its access to the government Needs its it's it's just running scared. It can't actually behave independently in the way that blogging can behave Independently yet blogging has to now gain the sense that it's also responsible as well as independent And so I think if blogging gains that Um then I think there will be a way in which whosoever the most actually the most independent Will get the most news and the ways that you're describing I think right now we're in a kind of stalemate because the the mainstream press is just just it's just running terrified as well It should and blogging has yet to gain the respectability of credibility like it's actually doing something responsible But I agree with peter that that's about to change It has to change there has to be some mechanism for us to get this information the desire of people to know I think will ultimately win the day. However, we get it We have a thought from back here Actually, I want to just make very quick two points. I don't want to sound like I'm beating on a dead horse But just to paraphrase a quote from your film Not this time around not if we left it to the intelligence guys if we left it to the press Um, we would have till this day believed that Saddam Hussein did did they possess WMD because they were like they bought up the stuff that the administration was giving them No one looked at it critically. But going here to the point, isn't it? I mean The the CIA folks the intelligence community. That's their culture keeping everything secret. So I think that The the target or it would have been a much more effective way of looking at things is that to ask Why are legislators are accepting this? Why are they doing allowing them to get away with this because again just in the run up to the iraq war They just accepted whatever the administration give gave them uncritically. Thank you. Yeah, my sense is that you know It's a it This is something that swings back and forth And that the you know the the press was rather critical in the discussions up to the first gulf war And I think that that had a lot to do with their reluctance to be critical in the run up to the second gulf work Because they felt that they'd been caught out then after it turned out that the weapons of mass destruction as reported by You know the bad reporting that went on the front page of the new york times by judith miller, which I thought was just horribly irresponsible Um, well, you know saying that there were these uranium These aluminum tubes were used to make uh to sort out uranium 235 from 238, which Anybody at livermore or los alamos would have told these were nonsense. These were things for Missiles anti tank missiles. They had nothing to do with uranium centrifuges And that that was a two page two column spread on the front page of the times was terrible And then sort of then in the and then sort of after that then they swung back and they became more critical um, so I think that there was there's a kind of uh oscillatory lagged back reaction constantly going on with the press and You know, I I as I said in when you earlier discussion I mentioned that I thought that it's very hard to make an abstraction about how the press should Should behave Because so much of it depends on on on to the case But I mean so for instance in the case of the centrifuges That is a place where a paper of record should have gone to technical experts They're not hard to find, you know, you die on new mexico. You find them I mean, they're they're probably 500 people in the You know in and around los alamos and oak ridge and and and sandy and so on who could have got given Information to an editor who is checking I mean just as the government has to put another pair of eyes on it the time should have put another pair of eyes on it So I think that it is possible to be for them to be responsible about those stories In that case they weren't I think the media needs some other eyes. There needs to be a media watchdog Something like the columbia journalism review, but it's more splashy like People magazine called secrets or something that that that would get enough readership that people would be watching You know, how is the media doing in in in covering what's been covered up? I suppose in the digital world We have live leak.com and wiki leaks and other sites that have sometimes been the repository of missile blowing Hi I'd like to ask a question about accountability and specifically about the role of lawyers in this and Let's start with the accusation made by one of the women in the film That the government simply decided that this was a good test case The to classify this report. We would take it up to the supreme court. Well, if that's true, then there's some lawyer That signed in affidavit that went to the supreme court that said this was A secret document knowing in fact that the document was not secret which would be a serious ethical violation And I know there's also been accusations of ethical violations made About not only what was said substantively in some of the torture members with the classification of it if for example We are going to torture suspects. It doesn't seem like that's something we don't want to come out In fact, it seems like something we do want to come out, right? Because that would perhaps intimidate Suspects so again, it seems like Lawyers have a role to play here in enforcing accountability in that we would hope When officials in the executive say I want this classified. They would say well really we can't do this um, so do you think it's There is some hope to think lawyers will exercise that or is that just a pipe dream that we can't rely on lawyers to actually Act this is for you Well, I'm not quite sure of the question and if you're asking whether lawyers can I mean as you were suggesting in the Reynolds case, I'm sure There was an argument about whether there was classified information in that document For reasons you were suggesting And I know I was as a lawyer in the government. I was presented with something that was classified often I would say usually when I saw a classified document. I would wonder why it was classified But if that's the question you're asking whether lawyers have a role there that it's really very hard They don't have much of a role in questioning classification challenges made by By other folks and there's usually um, as I say most of the classified documents I saw in the government I was befuddled as to why they were classified But when asked someone would tell me they would make an argument and I really wasn't competent to Second guess it. It's one of these things where you don't understand. Were you told within the government? Here's why or was it were you even told? No, no, you're not allowed to know No, I was always told when I was asked because Um, I was always told when I was asked You mean when you asked when I asked you were always told what the basis was. Yes, and I wasn't always convinced by that but Again, it was just not something I could have second guessed I didn't have any standing to second guess it Uh-huh and structurally is the same thing true for I guess the claim that someone is an enemy combat Uh, I guess the government's original position was That claim could be substantiated by something like an affidavit from an assistant secretary of state and no more Well, that was a long time ago. Yeah, I mean we're long we're long beyond that was like 2004 but there are That was more like 2002, but there are Lawyers in making legal judgments have to take facts as presented to them Now I would often an any good lawyer would question the basis for the facts and often It would be the case that when pressed The answer wasn't quite what they thought and I would keep pressing but at the end of the day Didn't have the basis to look behind all the facts or the resources time or Or personnel I wanted to ask to say a quick thing about the Reynolds case because The argument that persuades me that there was nothing in there and that they actually knew there was nothing in there And that they did actually want to it's I'm speculating, but this is why I think this The government argued this case in lower courts and lost like three times before it went to the supreme court and the argument was always um If you make us give you the accident report Then we will not be able to get good information for future accident reports when things go wrong If people are liable criminally liable for their bad behavior So we don't want to do that as you say that's an immunity argument more than a secrecy argument Right at that point that was the argument and the courts always said we understand that that's important But the the claims of the widows trump the argument of the government in this way Um, and then at the end Kirk patrick, I think that was his name said, you know, if you were arguing, I don't know national security Then maybe we would he wasn't he wasn't giving them anything and the only time they argued national security Was in front of the same court at the last moment and that's what won the day So it doesn't strike me that the government all along knew And wanted to protect national security and secrecy in that That seems like they found a way to win the argument and to make the foundation for the state secrets privilege I want to come back to one thing which seems to be important Which is that within the secret community, whether it's the department of energy around nuclear weapons Or whether it's in the cia, there are people who don't want over classification And they have a different reason. It's not because they think The discussion of this in general is good for democracy They think that too much over classification undermines the ability to protect the real secrets And we heard that over and over again. We heard that from the former head of los alamos We heard it from the head of security for nuclear weapons, brian sebert who's not in the film We heard it from melissa mailie The the the head of the chief of base jerusalem Tia also was against over classification. She was against the classification of what went on in abba grave. She said that's a crime So there are people who don't want it and they don't want it Maybe for another reason, but they don't want it because if you over classify nobody respects anything people will say Oh, you classified my dinner here. You classified, you know, when you're in this a lot of offices The you know the pop up on the screen is the default is to secret if that's your experience seeing a secret document After enough thousands of these go by you that have no, you know Cheese sandwiches is secret. Then, you know, you you say well, you know, maybe the place where this These particular weapons are stored is not a secret and they happen to be nuclear weapons And that's a problem So, I mean, I think that they're they're it's not entirely the case that everybody who works in a classified environment Is for classifying everything There are people who think about this the problem is that it's very asymmetric about the decision about what to release If you you know, no one's ever in the history of the universe been fired for over-classifying never happened right That's just a really just a steward said depending on paper's case when everything is classified and everything is secret nothing is secret And you're right that there are a lot of individuals who quite rightly I heard donald rumsfeld many times yelling at people About over classification. Why is this classified? This is you shouldn't be doing this And there are a lot of people who think that in the government, but the problem is the system Creates incentives for over classification both on individuals and systemically and So the whole system needs to be changed even and it is there's no doubt that it's damaging to national security to overclassify precisely the reasons you say and also because I think it makes it easier to leak So we're at time. I wonder if in the last minute we have to wrap up You guys have put so much effort into this movie. You've now seen it so many times You've it's kind of got a path dependence to it There might be whole pieces to it that now you would do differently if only you were starting from scratch, which luckily you're not So i'm just curious Either is there anything you want to share in reactions from participants who helped you make the movie now that they've seen it Did you get any interesting pushback or reaction? And secondly, was there anything you would actually want to change or wish that you had explored that you you didn't With the benefit of now having seen it and lived it for so long I I can there's two things maybe that I would love to be in the film That's not in the film one is that it would have been wonderful to have gotten A psychiatrist who works With people from the intelligence community who hold secrets who know who knows Intimately the human cost of holding such kinds of secrets was hinted at by the melissa's sham wedding Yes, and it's a hint, but you know if that could be explored much more fully and humanly in the film It's something I think we really wanted um And I had something else, but it's a secret It's already been shredded, you know we uh This question came up all the time in making the film and we started the film Uh last january january 08 at sundance and we went back at our own expense Put our families into financial danger and added the whole the almazery sequence in the film last You know last summer so we had we we've been through this process and I think after five years um I think now the idea of adding Other things to the film fills me with horror I think what you see is what you get here now Well, there's certainly aspects of the film that I think fill us with horror and I think that means it's uh Its job is in large part done. So thank you all so much for