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.

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Anonymous

What do you do? Get a promotion or bonus pay to say Edward Snowden is wonderful, Edward Snowden shits gold bricks, Edward Snowden is no longer human because he's become a gd demi-god who can make no mistakes ever again?

In the grief workshop I attended over 4 days, they called that Academy Award grieving. To only remember the good or only recall the bad of the person you had a relationship with and who died is to deny they're a human being who makes both good and bad choices. There was a separate category for people who had abused you, toward whom you felt only anger, but there was no separate category for people you worship just because they're now dead and, in this case, just because he did one little freakin' thing that you liked; as if nobody else could ever do anything even remotely similar, and even then I wouldn't WORship the person.
I have trouble with it myself when *I* find someone I think that way about, but I'm always working to keep it in perspective.
I don't understand why someone who's sent to war never feels like a hero, neither my family's friend nor my brother feel anything like it (my brother gets visibly uncomfortable every time someone thanks him for serving his country) yet nobody wants to shut up about a person's grand and stately greatness just because he knew how to use his mouth.
Which maybe it WAS a "good thing to do," but it's not like he hung the moon and gave us the stars. It's not like he's even the only one who could have done it, and it's not like the government is going to listen and change their entire demeanor forever just because they got caught once and for the time being had to change the way they were acting.
I think that as soon as they believe they can get away with it again, they're going to go right back to what they were doing pre-June 2013. So what has he done that makes him worthy of a demi-god status while he's still a human being?

Orlando Ramos

One of the problems we face against this "Cancer" is the lack of evidence to support legal cases against illegal and unconstitutional practices during surveillance. The lack of evidence may be a result of undercover surveillance practices by federal or local law enforcement agencies. Training Americans on how to identify when their rights are been violated and collect strong evidence against illegal surveillance practices will bring back Democracy. Thank you.

Anonymous

Elkins v FAA, FOIA action 8:12-CV-2009, US District court, Tampa, Elkins v FAA, FOIA action 1:14-CV-00476, US District Court, District of Columbia/ Unwarranted surveillance / Prosecutor Misconduct / Tampering with a FOIA request by EOUSA / EOUSA controlling another agency's records, not compiled by either DOJ, or any law enforcement agency/ Refusing to make a determination in 30 days / Improper use of exemption 7(E) by a non- law enforcement agency of not compiled for law enforcement use / US Attorney Douglas Malloy caught lying in official proceeding / High crimes and misdemeanors in the most corrupt state in America!

Anonymous

If secrecy is akin to cancer, then transparency will be its cure.

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