4 Ways the Government Keeps You In the Dark About What It's Doing

Human Rights

As generally happens during wartime, the war on terror pursued since the 9/11 terrorist attacks has led to a substantial increase in government secrecy. This worrisome trend can be seen in a number of areas.

1. Hiding Judicial Rulings: A great deal of the surveillance conducted in the name of national security is conducted through the special Foreign Intelligence Surveillance Court, established by the Foreign Intelligence Services Act (which was first passed in 1979 and was updated in 2008).   FISA allows conversations allegedly involving at least one person in a foreign country to be monitored without the usual requirement to establish probable cause.

FISC is not exactly a robust check on the executive branch; nonetheless, according to Senator Ron Wyden, there was an 86-page opinion issued by FISC declaring that a particular surveillance program violated the Fourth Amendment. A constitutional breach such as this is surely a matter of substantial public concern. And yet, not only has the opinion been kept from the public, even members of Congress have not been permitted to see it. As Glenn Greenwald recently observed:

“Members of Congress came to me with his grievance and asked me to write about it. And they gave me correspondence between themselves and the Intelligence Committee. And what they were asking for was not very sensitive information; they were asking for the most basic things, things they read about in media accounts, such as the ruling by the FISA court in 2011 that much of what the NSA has been doing, spying on Americans domestically, is a violation of the Constitution and the law. There really is, Amy, an 85-page, 86-page ruling issued by the FISA court that says the government has been systematically breaking the law and violating the Fourth Amendment in how it spies on us. And not only can we not see that ruling, because it remains a secret at the insistence of the Obama administration, even our elected representatives in Congress, who we’re told are exercising robust oversight, are blocked from seeing it.

The idea that even our elected representatives cannot see a judicial ruling holding a surveillance program unconstitutional is a completely unacceptable abuse of power.

The hidden ruling notwithstanding, the FISC has generally been a rubber stamp when it comes to surveillance programs. It has rejected 0.3% of applications, and because its rulings are secret the public can have no idea what standards are being used. (The Supreme Court’s opinions watering down the Fourth Amendment, at least, have to be made public.)

Even worse, the judges for this court are not chosen by the president with the approval of Congress, but are selected unilaterally by Chief Justice Roberts, who has packed the pseudo-court with conservative Republicans. Democratic judges are much more likely than Democrats in Congress or the White House to push back against abuses of civil liberties, but they’ve been largely shut out of the FISC, making it even less likely to be an effective check. 

2. Fourth Amendment Catch-22: Readers may be surprised to learn that the Supreme Court has yet to weigh in on whether the new FISA regulations are consistent with the Fourth Amendment. The reason for this is that the Obama administration and the federal judiciary have collaborated to advance a bad theory that prevents such cases from being heard. 

When a group of journalists brought a lawsuit against the FISA surveillance regime, the Obama administration argued that they lacked the “standing” to bring the lawsuit (based on the rule that individuals need to prove a direct injury before they can bring a lawsuit.) This is a classic Catch-22 – a potentially unconstitutional secret surveillance program cannot be challenged because it is secret – and is inconsistent with the rule of law. And, yet, earlier this year a bare majority of the Supreme Court bought the argument. 

3. Abuse of Classification Powers: Further undermining public accountability is the increasing number of government documents that are classified and hence shielded from public view. The state does have a genuine interest in secrecy in some cases, but they should be narrow and the presumption should be in favor of transparency. Instead, large numbers of documents are classified without any plausible security rationale. More than 95 million documents were classified last year (as opposed to 11 million in 2000) and the Manning and Snowden leaks have made clear that large numbers of these never should have been.  

4. FOIA Foot-Dragging: In addition to the abuse of classification, government agencies have also been slow to release the public information as required by law. Last year, an investigation found that 19 out of 20 federal agencies failed to comply with the timelines for responding to requests established by the Freedom of Information Act. A combination of a far too secretive Obama administration and the Republican mania for cutting discretionary spending have further undermined public accountability.

All of these secrets are not just bad for civil liberties. While many people assume that there’s an inevitable tradeoff between transparency and national security, as the Bush administration demonstrated when decision-makers are shielded from accountability this frequently leads to irrational, poorly conceived policy choices. The Obama administration has been an improvement on civil liberties and security issues in several respects, but on government accountability it has further entrenched the abuses of its predecessor. It’s a trend that needs to be reversed, but as of now things are getting worse rather than better.  

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