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.
Also of Interest: EPIC’s FOIA Webpages
Hat tip: Talking Points Memo
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.