It is a crisp Saturday morning in late November and the University of Pennsylvania campus is barely stirring as I walk into the Silverman building and head toward Room 147 for the morning’s roundtable discussion entitled, "Spying and the Judiciary: FISA and Other Special Courts."
The event is one of seven moderated discussions at the Center for Ethics and the Rule of Law (CERL) conference here, called "On the Very Idea of Secret Laws: Transparency and Publicity in Deliberative Democracy." I’m not the only geek who's fired up. A portly man in a suit and tie walks up next to me as we briskly move towards the meeting room.
“We’re in for a treat this morning!” he says, his mouth cracked with a grin and his eyes alight. Only one of us, however, would end up attending – and it had nothing to do with my lacking a tie.
After taking a seat and catching out of the corner of my eye the National Security Agency’s deputy director, John “Chris” Inglis, drifting into the room, a wiry CERL staffer named Ilya Rudyak walks over and asks for my name. I introduce myself and offer my press badge.
“You’re going to have to leave,” he says with a nervous smile.
After he escorts me into the hallway, another CERL representative, Claire Finkelstein tells me I can stop back at the conference toward the end of the lunch break to ask her some questions. In other words, the morning’s moderated discussion about secret courts, secret laws and America's rampaging surveillance apparatus is strangely, well, secret.
In fact, every event during this two-day conference – with the exception of Chris Inglis’s keynote speech delivered to a packed auditorium the night before – is listed on the university's law department website, while being completely shielded from press and public scrutiny. Furthermore, none of the event listings even have a full roster of attendees.
I find a 14-page list of participant bios outside the room. The packet is filled with representatives from the defense industry, intelligence community, academia and think tanks such as the Cato Institute.
Courtesy for the Powerful, Not the Public
Near the end of the attendees’ lunch break, I return and quickly find CERL’s head staff member, Claire Finkelstein, who seems dismayed that I’ve actually taken up her earlier invitation. “Is there classified information being discussed here?” I ask.
“No, no classified information, but sensitive topics,” she replies.
“If there’s no classified information being disclosed, why is it closed to the public?”
"The main point of the discussions is for policy makers, academics and others who are involved to enter into dialogue with one another in a way that allows all of us to move up the learning curve," she says, "so that we become better-informed academics and policy makers become better-informed." Soon, Finkelstein passes me off to another conference attendee, Alex Abdo of the American Civil Liberties Union, who carries on in her place.
“There’s a non-attribution agreement that applies, a ‘Chatham House Rule’ that people here are talking about,” Abdo tells me, and finally I know we're getting somewhere. Abdo is an ACLU staff attorney and participant in the organization’s National Security Project. He arrived at the University of Pennsylvania that morning after battling the NSA in U.S. District Court in Lower Manhattan the day before.
At moments during our conversation, Abdo seems embarrassed when I press him on the absurd, not to mention ironic, secrecy cloaking a conference whose very purpose ostensibly is to take a critical look at intelligence community obfuscations.
Dr. Hans Blix, during a 2006 U.K. conference on freedom of information during the Iraq War, scoffed at invoking the Chatham House Rule. Yet today, some still invoke it. “It’s a really fascinating discussion about how we should think about privacy in an era where so much private information can be collected so easily," says Abdo.
"I’ve been to a couple of these meetings before," he continues. "Usually, the thought is that if you get a bunch of people who are really thinking and working on these issues together in a room, and you promise not to use what they say against them later on, you’ll foster a thoughtful and uninhibited conversation."
After a pause, he adds wryly: "If no one’s surveilling you, you can have an uninhibited conversation."
Julian Sanchez, a CATO Institute research fellow who attended the conference in its entirety, characterized the truer purpose of the Chatham House Rules in a series of emails we exchanged later.
"You’ve got a bunch of lawyers who used to work for the government, some who currently work for the government, and others who might very well hope to work for the government in the future, perhaps on these very issues [such as Foreign Intelligence Surveillance Court opinions]," he wrote.
"I can promise you none of those people ever wants to be quoted in a newspaper making what comes off as a harsh personal criticism of a federal judge [who is assigned to the Foreign Intelligence Surveillance Court], or even seeming like they partially agree with someone else’s criticism,” he continued.
“In certain circles, that’s at least going to be a huge PR headache, and very likely career kryptonite. Maybe I can just come right out and say ‘that opinion was a total disaster,’ but I’m never going to have to argue a case before that judge, or be applying for a job at DOJ, and I’m certainly not important enough to make headlines with an offhand remark. So the only way you really get a free-flowing, honest discussion is if everyone can just talk without thinking about whether they’re going to make a Huffington Post headline if they phrase something the wrong way."
But whether or not Sanchez was aware, it wasn't just “a bunch of [government] lawyers” in attendance at the conference. In addition to top-ranking officials in the intelligence community, individuals with long-standing corporate ties to the defense and intelligence industries participated, too. To shed some light on the frustratingly non-transparent gathering, here’s a small sampling of attendees from the conference roster:
John “Chris” Inglis, Deputy Director of the National Security Agency and the organization’s senior civilian leader, “responsible for guiding and directing strategies, operations, and policy.”
Sean Kanuck, whose current position is National Intelligence Officer for Cyber Issues within the Office of the Director of National Intelligence. Kanuck came to this segment of the intelligence community after a decade-long position with the CIA’s Information Operations Center. Kanuck also has extensive experience in law focusing on corporate mergers and acquisitions.
William R. Craven, the founder and CEO of Overwatch Systems, “a software company serving the Intelligence segment of the Defense industry.” Prior to forming Overwatch, Craven “had been the CEO of Paravant, a public company serving the defense community with rugged and high speed computing solutions for Battlefield and Intelligence applications.
Lt. General Paul Menoher (Ret.), currently Director of Overwatch Systems LLC and an advising board member of Topia Ventures and Oberon Associates, Inc., as well as a consultant for ten other defense firms. Menoher also enjoyed a 35-year career in Army Intelligence.
Amos Guiora, currently a Research Fellow at the International Institute on Counterterrorism in Israel, Commander of the Israel Defense Force’s School of Military Law, and a former legal advisor to Gaza Strip operations.
George Casey, “head of Shearman and Sterling’s Global Mergers and Acquisitions Group.” Casey is an expert in U.S. domestic and cross-border mergers and acquisitions transactions, venture capital financing, and represents “many of the largest U.S. and non-U.S. corporate and investment banking clients.” Casey is also a current University of Pennsylvania School of Law lecturer.
Harvey Rubin, M.D., Ph.D, Penn’s Institute for Strategic Threat Analysis and Response director and Associate Dean for Student Affairs in the School of Medicine.
Thus, while influential members of government and private industry discuss issues behind closed doors – shielded from attribution to any “career-damaging” statements they might make, which clearly belong within the realm of public debate – you, me and ordinary citizens are shut out from the discussion to ensure that no statement gets recorded, publicized and proves damaging to a powerful person's reputation, career or profit margin.
While this particular conference may not directly produce public policy, Julian Sanchez assured me that academic papers may be written about what gets discussed. The papers may then become white papers that form the basis for later policies pushed by unelected officials, often outside the public eye.
Scrutinizing the Center for Ethics and the Rule of Law
What is no secret – unlike the conversations throughout the two-day CERL conference on surveillance and secret law – is how deeply entrenched the University of Pennsylvania and so many other non-state funded schools are within the defense industry.
Up to the third quarter of fiscal year 2012, which is the most recently available data, UP raked in more than $17 million in government research work, while the previous year here saw an even more lucrative $32 million in such contract work for the university.
For this reason among others, it’s worth taking a closer look at CERL. Its advisory board contains not only law professors from a variety of universities, but defense contractors like Overwatch Systems's CEO William Craven, who was the former head of Paravant, revealing two companies with deep roots in the defense and intelligence communities.
Ambassador Dell Dailey (Ret.) is another CERL board member whose consulting company “spans both Department of Defense and Department of State programs, numerous product focused companies, private equity, small arms company, think tank efforts and international operations.” Dailey also serves on the Board of Advisors for the nonprofit Center for a New American Security, which boasts of developing “strong, pragmatic and principled national security and defense policies.”
CERL’s seeming affinity for defense industry players and current national security policies doesn’t stop with its private contractor leadership, however. In a Penn Law Journal article published last summer, entitled "The Perils of Push Button War," the head of CERL and perhaps its most visible member, Finkelstein, is paraphrased talking about drone warfare:
"Finkelstein points out, however, that as a weapons system, there’s a lot to like about drones. They are more precise than traditional aerial bombs, better able to pinpoint targets, and therefore have the potential to dramatically reduce civilian casualties."
Two law professors and current CERL board members, Jens Ohlin and Kevin Govern, are cited in the same article as supporting the targeted assassination of U.S. citizens abroad, as in the case of Anwar al-Awlaki in Yemen:
"Jens Ohlin, a law professor at Cornell, and a member of CERL’s advisory board, said that the presence of an al-Qaeda branch in Yemen with an avowed intent of engaging Americans more than justified the invocation of war powers there. He said it has never been the case that American citizens taking up arms against the U.S. get special treatment on the battlefield," the article continues. "Another board member, Kevin Govern, law professor at Ave Maria Law School, and a former Army Judge Advocate, said that al-Awlaki might be compared to Nazi propaganda chief Joseph Goebbels."
What, then, do we make of University of Pennsylvania's “secret” conference participants, their relationships to the U.S. defense and intelligence apparatus, and the pervasive secrecy surrounding them? Can we trust that whatever academic treatise, white paper or possible policy decision that emerges from “On the Very Idea of Secret Laws” might represent not just the national security state’s interests and desires – but the interests and desires of the public, too?
Dustin Slaughter is a writer, photojournalist and legal assistant. Follow him @DustinSlaughter.