Secrecy is a Cancer on Our Democracy

In our 2011 ACLU report on secrecy “Drastic Measures Required,” my co-author Mike German and I wrote that “American democracy has a disease, and it’s called secrecy.” Government secrecy, we wrote, “is growing like a cancer in our democracy.”

Events continue to confirm the aptness of the cancer analogy, as federal executive branch secrecy spreads and corrupts both local law enforcement and the other branches of the federal government. Secrecy began as a very limited power with a proper place—for the federal government, to classify some intelligence “sources and methods” and things like war plans, and for law enforcement, to keep confidential the specifics of particular ongoing investigations. But these limited powers have now metastasized into an increasingly expansive practice, expectation, and culture of secrecy among security officials at all levels.

We know thanks to Edward Snowden how secrecy powers originally granted for specific and rare circumstances have been deployed routinely and on an industrial scale by vast federal security bureaucracies. But a culture of secrecy that originated in global geopolitical Cold War espionage is now spreading to local law enforcement, threatening the transparency that our criminal justice system requires.

Consider:

• As my colleague Nate Wessler reported earlier this week, the U.S. Marshals Service swept in and seized public records from a Florida police department in order to prevent them from being turned over as required by law in response to a request under the state’s open-records law.
• Tallahassee police used the controversial Stingray cellphone surveillance device hundreds of times without ever informing a judge.
• Police in City of Sunrise, Florida, served with a lawfully binding ACLU public records request, responded in March by refusing to confirm or deny the existence of any records relevant to our request. This so-called “Glomar” response, which has been approved by the courts in some circumstances when used by the CIA (though greatly abused by that agency), has no basis whatsoever in law when invoked by a local law enforcement agency.
• The government routinely asks judges to indefinitely seal requests for electronic surveillance in connection with ordinary criminal investigations, as the Wall Street Journal recently reported. The surveillance orders remain sealed long after investigations have ended, hiding the government’s surveillance practices from the public at a time of rapid technology change when the public needs to know more than ever how its government is using new technologies. The Journal reviewed more then 2,000 court filings and found that more than 90% of the surveillance applications were sealed.
• Around the nation, while lobbying in state legislatures for new privacy protections on issues such as drones, license plate readers, electronic communications, and location tracking, we have found that law enforcement’s top lobbying priority around such bills has been to fight transparency requirements.
• And of course as Reuters revealed in August, the Drug Enforcement Administration has been using NSA intercepts to launch criminal investigations of Americans, while hiding the source of its information not only from the public but also from defense lawyers, prosecutors and judges. In doing so, it has imported the secrecy of our spy agencies deep into the heart of our domestic criminal justice system.

At the federal level, the corruption that secrecy brings is growing not just within the executive branch, but is spreading to the legislative and judicial branches as well.

To begin with, we are increasingly becoming a society of secret laws, which corrupts not only the democratic legislative process but also the open judiciary that is so crucial in a democratic society. Examples include the secret FISA Court extending its reach into interpretive constitutional rulings, and the Justice Department refusing to reveal how it is interpreting and carrying out numerous laws, including those involving Patriot Act surveillance, the war powers used to order drone strikes against American citizens, and GPS and other location-tracking technology.

The secrecy system has also served to hamstring oversight by Congress. Not only does it mean that many executive branch activities are hidden from most lawmakers, but even when a lawmaker is “read in” to a secret program, that disclosure serves more to handcuff and neuter the lawmaker than it does to empower them to fight questionable activities. Former House Intelligence Committee ranking member Jane Harman described in 2008 how congressional “notification” works:

…as far as notes go, you—I suppose one could take some notes but they would have to be carried around in a classified bag, which I don’t personally own. You can’t talk to anybody about what you’ve learned, so there’s no ability to use committee staff, for example, to do research on some of the issues that are raised in these briefings. And the whole environment is not conducive to the kind of collaborative give and take that would make for much more successful oversight.

The House and Senate intelligence committees, which are supposed to carry out oversight over the most secretive executive branch agencies such as the NSA and the CIA, have actually exhibited the same secretive behavior as those agencies rather than serving as a conduit for information to the rest of Congress. They have refused to share information with their colleagues despite repeated requests from lawmakers outside the committees.

Then there’s the Supreme Court.

I have already written about how courts are inherently inadequate to the task of oversight over gigantic, secretive security agencies. Courts simply are not set up for, and do not have the administrative capacity to independently oversee, what is happening in the outside world. They are not administrative agencies like the EPA or USDA, which have inspectors out in the world able to verify first-hand what is taking place on the ground. Our courts are centuries-old institutions that evolved in an environment of mutually reinforcing openness, honesty, and adversarial process, and they depend upon such an environment to function properly and come anywhere close to ascertaining the truth about what’s going on beyond the four walls of the courthouse.

Now the relatively recent growth of a gigantic national security juggernaut that because of secrecy is neither open, nor honest, nor subject to an adversarial process is distorting and disrupting the courts and their functions—up to and including, it is now clear, our highest court.

The New York Times reported last month on dissatisfaction among some Senators over the Justice Department’s squirrelly response to revelations that the government had misinformed the Supreme Court during arguments in the ACLU’s case Clapper v. Amnesty. During arguments in this case, the government told the Supreme Court two key things:

1. That a suspect would be notified when charged with a crime based on the use of surveillance authorized under the FISA Amendments Act (the constitutionality of which we were challenging).
2. That the NSA could only listen to Americans’ conversations without a warrant when it was targeting a foreigner who happened to communicate with an American.

Both of these assertions were cited by the majority in its 5-4 ruling. Neither assertion turned out to be true.

On the first untruth, the DOJ has tried to defend its behavior, but, once this lie became public, began notifying defendants of the NSA’s role in their case—surely an admission of sorts.

But on the second falsehood, the Justice Department argues that it was justified in deceiving the Supreme Court because that information was classified at the time. Apparently we have reached a situation in which the executive branch feels justified in lying to the Supreme Court, which is charged with interpreting the ultimate governing document of our society, our Constitution, simply because that executive branch decided to stamp certain information as “classified.”

When one party to a dispute before a court, including the Supreme Court, can make assertions that the other party cannot dispute because of “state secrecy,” then distortions, inaccuracies, and outright lies inevitably follow and should surprise no one.

Secrecy powers are inherently dangerous in a democracy, and need to be very tightly confined to those specific circumstances where the national interest genuinely requires that they be granted. Unfortunately, in the absence of strong checks and balances, government secrecy is metastasizing throughout our democracy. Drastic reform is needed to fix this situation. Nothing else will do.