How Much Should We Know?

For upper-year students examining the issue of governmental transparency during an era marked by terror alerts and Twitter rumors, Columbia Law School offers access to a plethora of experienced practitioners and an international focus that is second to none

By Elise Jordan

Fall 2013

At 2:49 p.m. on Monday, April 15, four hours, nine minutes, and 43 seconds into the 2013 Boston Marathon, the first of two homemade bombs exploded near the finish line. Twelve seconds later, a second bomb detonated on the course. The explosions killed three spectators and wounded 264 others in what was the most devastating terrorist attack on American soil since September 11, 2001. Within seconds of the blasts, thousands of individuals set about responding to the disaster.

Medical workers at first aid tents organized makeshift triage units. Emergency room doctors and nurses learned via Twitter and text messages what had happened, and prepared operating rooms to accommodate the wounded. The FBI took the lead on the investigation, opening its first large-scale crowdsourced operation by requesting video and photos from witnesses, and using social media to gather information.

While first responders performed admirably, over the course of the next four days, the investigatory framework established to handle terrorist attacks post-9/11 showed signs of strain. The investigation, which unfolded in real-time on social media networks and cable TV, evidenced tensions between the obligation of the government to be transparent, while at the same time safeguarding information that needed to remain secret in order to locate the suspects. Government officials attempted to balance the public’s desire for news with operational security secrecy—the FBI held press conferences, the Boston Police Department posted to its Twitter account, and both worked to combat misinformation spread by the media and over the Internet.

Ultimately, four days after the race, America received some conclusive answers. One suspect, Tamerlan Tsarnaev, was killed during a shootout with police, and his younger brother, Dzhokhar Tsarnaev, was taken into custody. The Tsarnaev family is Chechen, and the brothers emigrated to the U.S. from Russia. 

The criminal justice system has now taken center stage, but there is much to be gleaned from those first days after the blasts. Even considering the extent to which many Americans have near-immediate access to newsworthy information, the investigation into the Boston bombings seemed different from other modern manhunts. “This was a hunt that was in large part helped rather than hampered by the cooperation of the public,” says Daniel C. Richman, Columbia Law School’s Paul J. Kellner Professor of Law. “The kinds of information coming in from victims and bystanders seem to suggest that there was a net-positive contribution from the public.”  

Not everything went according to plan, though. Millions watched as CNN, two days after the bombing, reported an arrest that had never taken place. Citizens tuned into police scanners and tweeted what they heard, and amateur sleuths flocked to the Reddit website to comb over publicly available photos of people attending the race—ultimately ID-ing “prime suspects” who proved to be ordinary spectators uninvolved in the bombing plot. The New York Post published a cover photo of two supposed suspects who ended up having nothing to do with the attack.

If the issue of governmental transparency had somehow managed to elude the attention of everyday Americans following 9/11, the Boston Marathon bombings certainly served as a wake-up call. Not surprisingly, the legal dimensions of transparency—the extent to which government information can or should be made public in an effort to ensure accountability and prevent corruption—are being examined by Columbia Law School faculty and students on a daily basis. At the Law School, classes dealing with issues of government transparency are strengthened by the School’s strong connections with national security law practitioners, its international focus, and faculty members who have wrangled with these issues while working in government.

Professor Matthew C. Waxman, who served at the State Department and the Department of Defense before joining the faculty, frequently uses formerly secret information that has leaked in the press as a starting point for conversations in his upper-level National Security Law class. He discusses targeted killing, interrogation policies, and surveillance in the course. “Especially in the cases of interrogation and surveillance, there’s often a concern about broadcasting to the enemy our intelligence-gathering techniques,” Waxman says, “yet the details of these programs are also matters of great public concern.”

This past fall, when Professor Sarah H. Cleveland welcomed former U.S. Ambassador to Pakistan and Law School Visiting Professor Cameron Munter to her International Lawyering for Governments class, he highlighted several transparency-related judgment calls. Munter dealt with some of the most difficult problems of national security law during two years as the U.S. envoy in that war-torn region: America’s top-secret drone war, NATO’s cross-border strike that killed Pakistani soldiers, and extrajudicial killings by Pakistani forces. He told the class about the case of Raymond Davis, an undercover CIA contractor who killed two armed men as they allegedly attempted to rob Davis in Lahore, Pakistan. After taking photos of the dead men, Davis fled the site, but Pakistani police soon captured and imprisoned him. Although he was not an entirely sympathetic figure, Davis’ clandestine work in black ops meant the American government had a clear interest in getting him out of the country—both quickly and without too much publicity.

As protests over the killings erupted across Pakistan, State Department officials insisted Davis was entitled to diplomatic immunity under the Vienna Convention on Diplomatic Relations. Reporters were pressured not to publish his covert status. Following two months of negotiations, Munter helped broker a deal that resulted in Davis’ release.

It was an important breakthrough. U.S. officials worried that, if held longer, Davis could have been tortured by the Pakistanis, revealing secrets to an untrustworthy ally. Munter told the students that the diplomatic and legal tightrope illustrates the balancing act modern government officials navigate in an effort to square secrecy and transparency interests.

Cleveland notes that transparency was the focus of several robust discussions during her International Lawyering course, which is part of the Law School’s increasingly internationally focused curriculum preparing students for careers in national security law, public law, and government service. Cleveland, who served as a counselor on international law in the Obama State Department from 2009 to 2011, headed the legal team that advised Munter on some of the trickiest flashpoints of international law. She views transparency and secrecy as especially relevant topics in the post-9/11 world. “Government legal analysis may be protected by attorney-client privilege and may be classified for other reasons, but it’s important to know the government’s legal thinking,” Cleveland says. “It’s very hard to criticize and challenge the government’s legal system if you don’t know it.”

As the former principal deputy director of the State Department’s Office of Policy Planning and the Department of Defense’s deputy assistant secretary of defense for detainee affairs, Professor Matthew Waxman crisscrossed the globe negotiating agreements and visiting war zone prisons. He says the study of transparency inherently poses a challenge: “How do you teach about things that remain secret?”

Waxman has seen an evolution in the perception of government secrecy. “When I arrived here six years ago, during the Bush years, and would teach secrecy, I think many students thought high levels of secrecy was a Bush administration approach,” he explains. “Now, teaching those same issues under the Obama administration, one sees how consistent some secretive practices are, regardless of who is occupying the White House.” 

This coming spring, Waxman will teach a Law School seminar with Michael Farbiarz, co-chief of the terrorism and international narcotics unit at the U.S. Attorney’s Office for the Southern District of New York, on intelligence and surveillance law in the 21st century. Waxman will also co-teach a seminar in the spring with former U.S. Senator Joe Lieberman that will focus on national security and Congress.

Public law scholars Philip C. Bobbitt and David Pozen, two of Waxman’s faculty colleagues, are also uniquely positioned to teach about issues relating to transparency. Bobbitt served in the Carter, George H.W. Bush, and Clinton administrations, and he helped write the charter for the CIA. His time in government coincided with some of the nation’s most historic transparency predicaments, including those relating to hostage negotiations during the siege of the American Embassy in Tehran, the Iran-Contra affair, and war powers issues during the run-up to the Gulf War.  

Pozen, meanwhile, became special assistant to then State Department Legal Adviser Harold Hongju Koh just days after Wikileaks released more than 250,000 classified State Department cables as part of the largest unauthorized publication of classified documents in history. “There was a lot of activity of varied kinds [as a result of] Wikileaks,” he recalls. “It was a period of significant anxiety.”

Cables revealing secret—and in some cases, snarky—diplomatic analysis, doings, and dealings were out in the open, available to the world in an unprecedented security breach. “Some foreign relationships were implicated,” Pozen adds, “and the Department had to attend to those relationships. Some cables raised discrete policy concerns that had to be dealt with. More broadly, the episode generated a lot of conversation about information security policy. That conversation was still ongoing in 2012, when I left the government.”

Just as Professors David Pozen, Philip Bobbitt, Matthew Waxman, and Sarah Cleveland wrestled with issues related to transparency while working in the executive branch, Columbia Law School students are working through similar complexities—sometimes in the context of a governmental office. The Law School’s Externship on the Federal Government in Washington, D.C., for instance, enables upper-level students to spend a semester working full time at government agencies such as the FBI general counsel’s office, the Justice Department, and the State Department’s legal office. “It’s an opportunity for students to put their classroom knowledge to work and see what it’s like to practice law within the machinery of government,” Waxman says.

Back in Morningside Heights, students participating in the Human Rights Clinic and working with Columbia Law School’s Human Rights Institute (HRI) engage in high-profile work on the topic of transparency and targeted killing.

In September 2012, the clinic published the first systematic study of the government’s covert drone program and its impact on civilian populations. Retired General James E. Cartwright, former vice chairman of the Joint Chiefs of Staff, quoted from this study in presenting Senate testimony on drone usage earlier this year. A second report found that widely disseminated estimates on drone-strike casualties could be inaccurate and misleading, garnering the attention of several news outlets, including The New York Times. This spring, a coalition expressing shared concerns regarding U.S. drone strikes, led by HRI, prompted a White House response reiterating the president’s commitment to greater transparency. The clinic also submitted written testimony to a Senate Judiciary Committee hearing on drone strikes, and HRI has hosted meetings for advocates and experts in the field, further enhancing its reputation as a significant resource on transparency issues.

Former federal prosecutor Daniel Richman says that outside-the-classroom opportunities can be invaluable to assuring that the early part of one’s career is marked by success. “Too many students think their formal legal education is running out by the third year,” he says. “Particularly if you want to be federal prosecutors, nothing is more wrong than that attitude.” In the third year, Richman encourages students who have a particular interest in public law to drill down in their specialization.

Columbia Law School students interested in national security law or public service careers who are looking to take Richman’s advice have the opportunity to learn from and meet an array of visiting legal heavyweights who supplement the law school experience. Prominent speakers such as Daniel L. Glaser ’93, the U.S. Department of the Treasury’s assistant secretary for terrorist financing, and Brigadier General Mark Martins, the country’s chief prosecutor for military commissions, have delivered recent lectures, the latter as part of the Roger Hertog Program on Law and National Security speaker series.

Through the Center on Global Governance, which they co-direct, Professor Michael W. Doyle and Professor Emeritus Richard N. Gardner have organized guest lectures with invited diplomats and international officials, such as U.N. Deputy Secretary-General Jan Eliasson, who spoke about international development. And a spring conference held by the Center for Constitutional Governance drew practitioners and scholars, including former White House Counsel Robert Bauer and Harold Hongju Koh, for discussions of the constitutional challenges facing the Obama administration in its second term.

In the classroom setting, meanwhile, students are pressed to push past theory and examine issues as a government lawyer would. During Pozen’s upper-level Law of Government Secrecy course, he asks students to do a close reading of the Freedom of Information Act, which allows for the release of requested information from government agencies in an effort to serve the public’s right to know. He wants them to think about how the law constrains governmental actors who are looking to keep information from the public, and what balancing approaches they might take if presented with similar circumstances. His course covers a range of topics, including the classification system used to categorize the secrecy of national security information, executive and state secrets privilege, whistleblowing, and theoretical and constitutional debates over the existence and scope of a “right to know.”   

“I want to immerse students in both general theory and the practical considerations of being a government lawyer engaging these questions,” Pozen says. “I urge my students to assess critically the claims made by secret-keepers and open-government advocates alike.”

Students in his class review cases and statutes, but also news articles on scenarios such as the CIA’s refusal to turn over records dealing with the drone program. “I try to push students to get beyond the loose, popular association of bureaucratic ‘transparency’ with light and truth and all things desirable in government, to see the complexity in the issues,” Pozen says. “Transparency is a fundamental public value, but it is far from an unalloyed good.” 

Richman asks his Federal Criminal Law class to think not just about how statutes, like that criminalizing the material support of terrorism, are interpreted, but how they should be written, and how prosecutions should be timed. 

“The notion of how and when elected public officials get prosecuted is an interesting transparency question,” he says. “What happens when an election is coming up, even as an investigation is being pursued with respect to a public official? To what extent should the timeline of the political process play a part in the decisions made by prosecutors? There’s no right answer across all cases.”

To give students a sense of how decisions in the often opaque world of federal criminal enforcement get made, Richman has brought in FBI agents and former colleagues from the U.S. Attorney’s office, including Special Prosecutor Patrick J. Fitzgerald—who visited while he was serving as the U.S. Attorney in Chicago—and James B. Comey, the new FBI director, who talked to students about his management role as deputy attorney general under President George W. Bush. Earlier this year, Comey came to Columbia Law School to be in residence as a senior fellow in the Roger Hertog Program on Law and National Security and, until his nomination intervened, was preparing to teach this fall.

Daniel Richman’s assertion that there are no blanket answers that cover all cases is a sentiment that comes up again and again for those who teach courses focused on issues of transparency. In most instances, there simply are not cut-and-dry-type solutions. “Many students come in thinking of transparency and secrecy as a black-and-white issue,” Waxman says. “Things are either secret, or they are open. But you see many examples where we have tried to strike a balance down the middle. There are many ways systems can be set up to try to find a middle ground between complete public openness and total executive secrecy.”

Transparency dilemmas, of course, are not limited to the domestic sphere. Under international law, for instance, what did the Pakistani public legally have the right to know about Raymond Davis’ activities in their country? More abstractly, what transparency standards should guide international tribunals that meld the laws of several nation-states in an attempt to moderate cultural and legal differences? And what is the best way to facilitate transparency in financial reporting related to international trade? 

For the past two years, Professor Sarah Cleveland has co-taught International Lawyering for Governments with Daniel Bethlehem, the former principle legal adviser of the United Kingdom Foreign and Commonwealth Office. The first year, the seminar dealt with lawyering for the U.S. government, and, in the second year, the seminar focused on comparative approaches to international government lawyering—with former British Attorney General Peter Goldsmith, among others, offering his insights as a guest speaker. Instead of assigning independent research papers, Cleveland and Bethlehem asked students to work in teams, analyzing and proposing solutions for thorny transparency problems, such as how government actors should respond if hackers attack U.S. computer systems and how the American government should attempt to self-regulate efforts to target terrorism suspects using drones.

While Cleveland and Bethlehem focused on international law in relation to sovereign nations, Professor Michael Doyle’s upper-level Global Constitutionalism course examines what Doyle refers to as the “constitutional character” of world treaties like the Peace of Westphalia, the U.N. Charter, and the WTO agreements. Combining equal parts political philosophy, political science, and constitutional law, the course focuses on the study of global governance and how law can promote cooperation around the world. Here again, transparency issues underlie many of the topics at hand.

“We don’t have an international democracy, but we are deeply influenced by what happens in other countries,” Doyle says. “Transparency comes in at the global level as a norm that could enhance the degree of legitimacy for decisions that will never in the foreseeable future be democratic. If we can find a way to make decisions at the WTO, or the U.N., or the EU, or other bodies that are more transparent and are subject to review, we are more likely to get legitimate global governance than if decisions are made in secret by a small elite group that doesn’t listen to other parties that might be affected.”

Doyle’s overarching point is especially relevant in light of the Boston Marathon bombings and their aftermath. One of the chief national security lessons reaffirmed by that tragedy relates to the continued importance of international, cross-border cooperation in efforts to curb and counter terrorism.

Since as early as 2001, Kremlin sources have leaked information aimed at convincing the U.S. government that Chechen groups were responsible for terrorist attacks in places like Iraq and Afghanistan. After Boston, those assertions are being seen in a new light. “The interaction between American intelligence agencies and the Russians as they try to work through what these guys were doing when they went back home, and who they were dealing with, is where interesting action will happen, or not,” says Richman. And finding the appropriate balance between transparency and secrecy will be key to the investigation’s ultimate success. “There has to be a mix of public input and government secrecy, and it’s hard to say what that balance is,” he adds. “But what you do see [in the Boston example] is that both are important to successful counterterrorism operations.”

Elise Jordan has written for The Atlantic and The Daily Beast.