Two remarkable stories have revealed the extent to which Americans are subjected to a rule of secret laws administered by a court whose decisions are will never see the light of day.
The existence of a corpus of secret law and a judicial venue capable of issuing rulings that strike at the heart of the concept of openness without which no form of democratic governance can survive should chill us all. Even more chilling is the apparatus they’ve assembled to carry out its provisions. But that’s the second part of the story.
A letter sounds the tocsin
Two members of Barack Obama’s own party who serve on the Senate Intelligence Committee — a body endowed with the ability to see some of those secrets — say that we, the people, would be shocked to discover what’s going on under the mantle of judicial secrecy.
Mark Udall [Colorado] and Ron Wyden [Oregon] have set their concerns to paper in a letter to Attorney General Eric Holder, the chief attorney for an administration which had promised us would be the “most open and transparent in history.”
They target are government’s use of the so-called “business records” provisions of the Patriot Act. Consider for a moment that all your emails, your website visits, the data your computer transmits to software makers, credit card transactions, hotel room pay TV views, and much, much more are “business records” and then you get some idea of what’s at stake.
From their letter:
We have discussed the dangers of relying on secret interpretations of public laws with you on multiple occasions, both through correspondence and in person. While we know that you are generally aware of our views on this subject, we feel obliged to comment specifically on the Justice Department’s recent attempt to seek dismissal of two lawsuits that have been filed under the Freedom of Information Act and that specifically pertain to this problem of secret law.
The two lawsuits (filed by the New York Times and the American Civil Liberties Union) seek to obtain about how the United States government has interpreted the text of the USA Patriot Act. specifically section 215 of that Act, the controversial “business records” provision.
It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or “FISA Court”) has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.
We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.
As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society — in which the government derives its power from the consent of the people — citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law.
Here’s a commentary by Cenk Uygur of The Young Turks:
Then add in one other recent story.
The ever-expanding cyber-security complex
James Bamford has distinguished himself as the national’s leading authority on the National Security Agency, that most secret of spy shops.
Writing for Wired’s Threat Level blog, Bamford describes a massive new complex under construction in Utah:
Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.
Bamford’s latest opus describes an Orwellian machine governed only by whatever limits the government’s secret court imposes, limits that won’t be revealed to us, absent the actions of a vigilant press — an institution that’s already dying.
His portrait of the extent of the size, reach, and growing power of the surveillance machine reveals a monstrous monolith, governed in secret, and constantly accumulating our own personal secrets, fantasies, and darkest thoughts.
With the machinery in place, a declaration of national emergency by an unscrupulous, power-hungry executive would realize everything Orwell, Huxley, and countless others have foreshadowed.
And with such a system in place, it’s more likely a question of “when” than “if.”