In the late 1990s, as part of a covert effort called Operation Foxden, the FBI, the NSA and the US Central Intelligence Agency (CIA) were working with three businessmen — one Afghan-American citizen, two British — to introduce telecommunications infrastructure into Afghanistan. They planned to rig it with extra circuits in order to listen live to every landline and mobile phone call across the whole of the country. But there was a turf war between the three US agencies, which led to Operation Foxden being delayed some 20 months. It is believed, had it been introduced earlier, it may have helped gather intelligence about the 9/11 terror plot — possibly preventing it from ever happening.
The businessmen involved in helping set up the Afghan network later had a dispute over money, which in 2002 ended up being taken to a court in New York. A year later, the case was suddenly shut down by a judge who cited the state secrets privilege. It turned out that the two British men involved in the deal — Stuart Bentham and Michael Cecil — were being defrauded by the Afghan-American, Ehsanollah Bayat. But they were not allowed to have their case heard in court because the US government did not want its secrets laid bare — in this case showing that a dispute between the intelligence agencies had delayed a massive spy project that might have helped prevent a catastrophic terrorist attack.
Last year, a Vanity Fair writer found out some details about Operation Foxden and approached the CIA for comment about it. Surprisingly, given the previous iron-fisted attempt to keep the story secret and out of courts, the CIA made no attempt to suppress Vanity Fair’s report. Why? According to a US source quoted by David Davis in his speech to the British parliament on the subject: “Ten years have passed since 9/11, and the culpable people have moved on, so it’s no longer embarrassing.”
The short remark was as shocking as it was revealing. As Davis noted:
This demonstrates only too clearly that although the aim of the American state secrets privilege is to protect national security, in practice it is often used to eliminate embarrassment — political, bureaucratic, organisational or individual embarrassment at past failures … It also shows how giving a government agency an absolute right to secrecy encourages bad behaviour. The American agencies could easily have stopped the defrauding of British citizens without the matter going to court, given their enormous leverage in the matter. Instead, they chose to suppress justice.
Could the current attempt to stop the case against the NSA over the domestic surveillance programme be a similar bid to “suppress justice” and protect reputations? It is not a far-fetched possibility. One key figure in the warrantless wiretapping saga has even openly gloated about how he is pleased state secrets privilege is being used to shield him. General Michael Hayden, who was the director of the NSA between 1999 and 2005, said with a smirk a few weeks ago that he was “personally grateful to Obama for using the state secrets argument to stop some of these court proceedings — because I am personally named in some of these courts.”
Perhaps most alarming, though, is the bigger picture at play here. When any democratic government repeatedly resorts to secrecy to protect the disclosure of information the public has a right to know, it has lost its way. It is broken, existentially fractured. In my own experience as a journalist, the US has a stronger culture of freedom of information than the UK does, but at the highest echelons of power there remains a definite absence of transparency and accountability. The ongoing surveillance case, and the aggressive bid to suppress it, is only the latest example.