Sunday, 17. June 2012
Max Holland; Leak: Why Mark Felt became Deep Throat; Univ Press of Kansas (March 2012)
What was Watergate about? Who was Mark Felt? Was he “Deep Throat?” If he was, why did he do it? Why should we care, now? These are some of the questions underlying, addressed in, and raised by a new book by Max Holland titled Leak: Why Mark Felt Became Deep Throat.
Watergate, at its root, was about the abuse of executive branch powers. The discovery of a break-in at the office of a rival political party spiraled into an affair leading to impeachment proceedings and the resignation of a President, following revelations of high-level support for illegal activity including campaign finance violations, money laundering, wiretapping, and burglaries.
In a country based on constitutional principles like ours, drawn on a tapestry following a war for independence from tyrannical government authority, the exercise of executive branch authority always calls for oversight. And good lessons from history can help illuminate current events. In Leak, Holland provides a valuable and original inquiry into important historical questions. Holland’s interpretation gives us some insight into a murky history, and it also provides context for currently pressing questions about the integrity of government and our Rule of Law.
Who Do You Trust?
Who can we trust, when lawmakers and law enforcers become lawbreakers? What motivates those who speak out, or “leak,” to provide sensitive and previously secret information to society? Can we always rely on people of integrity to speak out when warranted? What if we can’t trust the people who do speak out, or the people who report what they say?
An “old friend” of young Robert Woodward apparently became a source for some of the most sensational Washington Post reporting from Woodward and Carl Bernstein on Watergate. Famously dubbed “Deep Throat” by a senior Washington Post newsroom executive, his motivations have been a source of evolving interpretation, even for Woodward and Bernstein. In All the President’s Men, the image is closer to a person with a conscience, driven to speak out by his concern for the integrity of the Oval Office.
Trouble is, he didn’t just stand up for what he believed in. The information came from out of the shadows, on “deep background.”
Mark Felt: What Did He Do, and Why?
In Leak, Holland states that it is now a fact that Mark Felt was Deep Throat. At the time at issue, Felt was one of the top officials in the FBI. Bernstein and Woodward wrote many articles based on his alleged “leaking” during the latter half of 1972, but they regarded their October 10 story, later called their “assault on democracy” story, as one of their most important. In the aftermath of the story, Felt’s identity as a source apparently had been divined by senior White House officials, but he couldn’t be attacked for some of the same reasons the Watergate burglars and their immediate supporters couldn’t be disowned or attacked. Felt, and the burglars, simply knew too much.
But why did Felt “leak?”
Holland’s conclusion is that Felt was an ambitious man, so ambitious that he was eager for the top spot at the FBI following J. Edgar Hoover’s departure, and so eager that he was willing to risk talking to the press about an ongoing investigation so as to undermine the interim director (L. Patrick Gray) and other top officials in his quest for the top spot. One of those others was William Sullivan, who paired with Felt in a colorful story told by Holland involving a threat of a fistfight. In turn, Holland’s interpretation of Felt’s 1973 departure from the FBI involves a “live by the sword, die by the sword” lesson about bureaucratic infighting.
The fistfight threat and live by the sword, die by the sword analogies serve as good symbols of a larger reality here. Politics ain’t beanbag, and bureaucracies can get really, really ugly. For these reasons, this book is valuable not only for a general audience interested in some of our most important history. I’d also recommend it to public policy or government studies students considering a career in government, for the cautionary tale about what can lie ahead.
But sometimes, competition can help breed the truth, even from within a den of thieves.
From Where Does Truth Spring? Ambition vs. Whistleblowing
In 1973 and 1974, after Nixon was re-elected, the wheels of justice continued to grind on Watergate, driven in part by the drumbeat of media stories such as those based on Felt’s revelations to Woodward and Bernstein. A peak event arrived in July 1974, when the Supreme Court ruled in favor of a subpoena issued by a special prosecutor seeking taped recordings of White House conversations.
These conversations related to a criminal case involving senior White House officials including Attorney General John Mitchell along with H.R. Haldeman, John Erlichman, Charles Colson and others. President Richard Nixon argued that the tapes were protected by “executive privilege,” a privilege asserted to flow from a need to protect confidentiality in Presidential conversations and implied from the President’s powers in Article II of the U.S. constitution. In United States vs. Nixon, the Supreme Court denied the claim, at least in this case. Writing for the majority (actually, the vote was 8-0, with Justice Rehnquist recusing), Chief Justice Warren Burger penned:
“We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
But the Supreme Court did not decide that a claim to “executive privilege” could never be upheld.
“The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.”
In other words, were the President to assert a need to protect military, diplomatic, or sensitive national security secrets, the Supreme Court might find that a claim to privilege could serve as a valid defense — even potentially in a case involving criminal matters.
The United States Supreme Court may be the highest court in the land, but it isn’t infallible. Two decades earlier, a dubious Supreme Court decision laid the groundwork for a related doctrine called the “State Secrets Privilege.” After a military plane crashed, victim family members sued to obtain information they believed would help them learn about the reason for the accident, and support their case for damages. But the Air Force and U.S. government resisted, citing a need to protect national security, as the flight was testing secret equipment. In United States vs. Reynolds (1953), the U.S. Supreme Court upheld the government’s claim to defend “state secrets.” But when the accident report sought by the victim family members was declassified decades later, it contained no secret information, just noting that secret equipment was on board, a fact that was public at the time. Instead, the information revealed was asserted to support a claim of negligence.
The United States vs. Reynolds case was the first formal recognition of the state secrets privilege in the Supreme Court. In a special Senate Judiciary Committee hearing examining the issues in 2008, constitutional law scholar Louis Fisher, author of In the Name of National Security (a book about the Reynolds case), was invited to testify. Fisher critically examined the Reynolds history as well as the asserted need for broad deference to executive branch claims to secrecy. He called for statutory recognition of the need for independent judicial review, and an explicit statement in the legislative definition that “The state secrets privilege may not shield illegal or unconstitutional activities.” We have yet to see these recommendations put into practice, but they deserve further consideration as well as implementation.
Earlier this year, Sibel Edmonds, a former FBI translator, wrote and self-published a book describing her experience with the state secrets privilege in a case she took all the way to the Supreme Court. In late 2002, the office of the U.S. Attorney General (then, John Ashcroft) issued a press release announcing the United States Department of Justice was invoking the state secrets privilege in Sibel Edmonds vs. Department of Justice. This action was taken after a formal request from the Director of the FBI, and the press release specifically cited how “… the litigation creates substantial risks of disclosing classified and sensitive national security information that could cause serious risks to our country’s security.”
Bringing to mind the opening paragraphs of Thomas Paine’s revolutionary pamphlet Common Sense, and in particular, his warning how:
Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer.
… Edmonds went on to describe her initial reaction to the invocation of the state secrets privilege in her case in these terms:
What in the name of God was State Secrets Privilege? What did they mean by “to protect national security.” From what I knew, what these agencies were covering up was endangering national security.
As the matters at issue in Watergate were largely concentrated on embarrassing and/or illegal activity in the executive branch, the administration’s defense included claims to “executive privilege.” By way of contrast, Edmonds’ material and her concern about its treatment by the state involves issues shared across the three main branches of our government, one factor underlying the assertion of the broader “state secrets privilege” in her case. In her memoir, Edmonds went on to list some questions she had about what the government might be “shielding.” The list included:
- Was it Congressional corruption that involved one of the most powerful men in Congress and a few others there?
- Was it government officials within the State Department and Pentagon, on the payroll of foreign entities who sold our secrets, intelligence, and technology?
- Did this have anything to do with narcotics trafficking, with some of those involved connected to the higher-ups at the State Department, Pentagon, NATO, as well as certain lobbyists?
- Was it the cover-up related to 9/11 — those issues we’d all been warned to keep quiet about?
No matter. United States v. Nixon was not to be repeated. The Supreme Court stated it would not hear Edmonds’ case, without explanation.
Sibel Edmonds and Mark Felt – what are some of their similarities and differences? Edmonds and Felt both revealed sensitive, previously closely-held and/or secret information. They both “leaked,” but this is a pejorative term that applies more closely to the Felt case.
Accepting the PEN/Newman’s Own First Amendment Award in April 2006, Edmonds offered some clues to her own selfish, ambitious motives:
Standing up to despotism and tyranny has always been considered illegal by those in power, and dangerous to those who would expose them. Today we are facing despots who use ‘national security’ to push everything under a blanket of secrecy; to gag and call it a privilege; to detain without having to show a cause; and to torture yet believe it’s fully justified.
We must be vigilant and fight back, for our freedom is under assault – not from terrorists – for they only attack us, not our freedom, and they can never prevail. No, the attacks on our freedom are from within, from our very own government; and unless we recognize these attacks for what they are, and stand up, and speak out – no, shout out – against those in government who are attempting to silence the brave few who are warning us, then we are doomed to wake up one sad morning and wonder when and where our freedom died.
Bill Bergman has 10 years of experience as a stock market analyst sandwiched around 13 years as an economist and financial markets policy analyst at the Federal Reserve Bank of Chicago. He earned an M.B.A. as well as an M.A. in Public Policy from the University of Chicago in 1990. Mr. Bergman is currently working with Social Movement Sciences LLC, a new enterprise developing evaluation and funding services for not-for-profit organizations.
 Max Holland, Leak: Why Mark Felt Became Deep Throat, University Press of Kansas (2012)
In 1973, Robert Woodward was 30 years old, while Mark Felt was 60 years old.
 This remains a matter of some uncertainty. See for example this recent article in New York magazine by Jeff Himmelman, http://nymag.com/news/features/ben-bradlee-2012-5/, or this article by Russ Baker, http://articles.businessinsider.com/2012-05-10/politics/31705778_1_lowell-weicker-nixon-and-watergate-second-installment/15.
418 U.S. 683 (1974)
 Fisher’s prepared statement at this hearing is available here — http://loc.gov/law/help/usconlaw/pdf/ssp_senatejudiciary.pdf
 As quoted in Sibel Edmonds, Classified Woman: A Memoir (2012), p. 201
 Sibel Edmonds, Classified Woman: A Memoir (2012), pp. 201-202