How Much Government Secrecy Is Really Necessary?
posted by Daniel Solove
Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:
“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”
I’m growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance — possibly exceeding the limits of his lawful powers — put “our citizens at risk”? Why is every disclosure about the extent of the government’s surveillance somehow assisting the terrorists?
The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.
Recently, I blogged about a story involving a secret DOD database of protesters. And there’s a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?
Far too often, we trust the government when it claims the need for secrecy, but should we? The government called for secrecy of the Pentagon Papers to protect national security. The Attorney General stated that the disclosure of the Pentagon Papers “will cause irreparable injury to the defense interests of the United States.” Stephen Dycus et al., National Security Law 1017 (3d ed. 2002). These claims were, in fact, way overblown, if not outright false.
As Mary-Rose Papandrea notes, courts are often far too willing to defer to government claims of secrecy: “When information arguably involves national security, courts are too timid to force the executive branch to provide a thorough explanation for continued secrecy.” Mary-Rose Papandrea, Under Attack: The Public’s Right to Know and the War on Terror, 25 B.C. Third World L.J. 35 (2005).
It’s not just the courts, but the public and Congress who are often being too deferential. There have been far too many empty declarations of the need for secrecy to give the government much credibility in this regard. If you want to be trusted, you must be trustworthy. It is a lesson, sadly, that the executive branch and executive agencies have not seemed to learn.
Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
2. Solove, Did President Bush Have the Legal Authority to Authorize NSA Surveillance?
3. Solove, A Secret Department of Defense Database of Protesters
Also of Interest: EPIC’s FOIA Webpages
Hat tip: Talking Points Memo
December 17, 2005 at 2:04 pm
Posted in: Criminal Procedure, Privacy, Privacy (National Security)
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Responses (6)
Dylan - December 17, 2005 at 2:51 pm
“It’s not just the courts, but the public and Congress who are often being too deferential.”
Everyone disagrees with me, so obviously the system must be broken!
Emergent Chaos - December 17, 2005 at 4:22 pm
Government Secrecy and Wiretaps
I’d like to respond to Dan Solove’s article “How Much Government Secrecy Is Really Necessary” with the perspective of a veteran of the 1990s crypto wars, in which we fought the NSA for the practical right to build and use…
Bruce - December 17, 2005 at 5:04 pm
Dan, your questioning of the legal authority annoys the President, which distracts him from the War on Terra, which aids the terrorists.
Steve - December 17, 2005 at 5:10 pm
Maybe if the millions of folks living on Prozak and Zolof, the “It’s All Good” generation, WAKE UP this administration’s trampling of the Constitution will have him impeached. Right.
geoff manne - December 17, 2005 at 7:35 pm
It’s naive to think the government “trustworthy,” and the issue is not appropriately about instrinsic trustworthiness at all. See public choice theory. And your question (“but should we?”) implies that we can tell ex ante when secrecy is desirable and when it’s not — and even more, that we can tell ex ante whether the broad conditions that enable government secrecy should be maintained (since it’s rarely a question of whether X should be kept secret, but really a question of whether, say, the president should have among his powers the power to do things secretly). Regardless of overblown and tired rhetoric like that you quote above, there is certainly a class of circumstances where, even though the government isn’t “trustworthy,” we must entrust it with the exercise of power, even recognizing that we can’t know ex ante whether we should. I think it quite likely that the recently-revealed NSA surveillance was illegal (but it isn’t necessarily for the reason most think — see this excellent post for the right analysis). But does that mean we have any good way of knowing whether we should tolerate the conditions that make such secrecy possible? Hardly. I’m never inclined to give much power to the government, and yet even I can’t say I know we should scale back in this regard just because we become aware of some abuse ex post. The statement that we’re all too deferential is not based on enough information, it seems to me, to be meaningful. Judge Posner in his recent Legal Affairs debate with Geof Stone made much this same point, and made it much better, of course.
Maura - March 27, 2006 at 2:56 pm
Though trusting a government at this point in time, or any, is a difficult task at best, I’ve always kept hope that our leaders would adhere to the laws our forefathers set out for us.
I appreciate your blog and thought I’d pass along a URL that you might be interested in:
http://www.littlebrotheriswatching.com
I saw the billboard these folks posted when driving down the Mass Pike and went to the website. Good to see that people are trying to spread the word on a grassroots level.
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