[This is the first installment of a two-, three-, or possibly even four-part series. I plan to publish the posts in the series on consecutive days.]
The story of the CIA detention centers leak raises issues far bigger than the personal fate of the leaker, or even whether the particular information divulged in this case might have damaged national security.
What could be more important? The old, old question of individual conscience and responsibility.
For a person joining a group that requires confidentiality and/or obedience to a certain set of rules, when is it all right to disobey the rules and/or to break confidentiality? In fact, when does it become a duty to disobey or to break confidentiality? And, if so, how best to go about doing so? And what should the personal consequences be to the person who disobeys?
It’s the same issue raised during the Nuremberg trials, when defendants used the “we were just obeying orders” line as an excuse for egregious crimes against humanity. It’s a question that comes up in the life of nearly every military person, whose duty to obey goes hand in hand with a concomitant duty to disobey what is a clearly illegal order, if such an order should ever be given.
It’s an issue faced by psychotherapists and all others who are privy to confidential information and are duty-bound to protect it for certain obligatory exceptions. For example, ever since the landmark Tarasoff case was decided in 1976, therapists have struggled with the so-called “duty to warn,” which requires them to breach confidentiality whenever they receive credible information that their client is planning to harm another person.
CIA officers and others whose jobs involve national security are in a position of strict confidentiality, and the secrets they are sworn to keep ordinarily involve much higher stakes than therapists ever encounter. In fact, you might say that secrecy is the essence of the work of the CIA; it is impossible to imagine a functional intelligence agency without it.
The question of when and how the individual decides to breach confidentiality and rules is a basic one. If it happens too easily and often, the all-important functioning of institutions such as the military and the CIA is lost, and these vital institutions dissolve into impotent anarchy. If it never happens at all, the unchecked power of such institutions can foster terrible abuses.
Harvard Law professor Martha Minow deals with some of the issues involved in the case of the military in her recent article entitled “Living Up to Rules: When Should Soldiers (and Others?) Disobey Orders?” I confess that I’ve only read the beginning of the article so far (it’s very lengthy), but this quote seemed especially apropos:
Here is the central difficulty: Telling soldiers that they face punishment, unless they disobey illegal orders means telling them to think for themselves, and question authority. Taken to an extreme, directives to “think for yourself” and “question authority” would disturb the command structure and practice of drilled obedience in the military. As one military expert has explained, during military operations decisions, actions and instructions often have to be instantaneous and do not allow time for discussion or attention by committees. It is vital to the cohesion and control of a military fore in dangerous and intolerable circumstances that commanders should be able to give orders and expect their subordinates to carry them out.
All of us are often in a position where we are expected to obey laws, directives from a boss, assignments from teachers or clients, dress codes or the traffic directive of police officers … Even for civilians, individual thought and resistance jeopardizes the order sought by official rules and the rule of law itself.
Obedience seems to have become a bad word, post-baby boomer generation and post-WWII. And rightly so, at least to a certain extent; we’ve seen where absolute and rote obedience can lead. So those “Question Authority” bumper stickers are no joke.
But the kneejerk questioning of authority and the reflexive suspicion of all institutions of government (a suspicion which often amounts to certifiable paranoia; witness the number of emails I receive purporting to explain how Bush was responsible for 9/11), as well as the elevation of individual partisan personal opinion in those making the decision to breach national security, are crippling our ability to effectively fight those who would destroy us.
[Planned subsequent posts in the series (hope I actually get around to all of this!) will deal with issues raised by My Lai, the Ellsberg/Pentagon Papers case, and suggestions for dealing with national security leaks.
Tune in tomorrow for Part II...]