06/07/2013 02:02 pm ET Updated Aug 07, 2013

Government Secrecy and the Nation's Security


In recent weeks, a series of disclosures has raised important issues about how the Obama administration deals with the inherent tension between government secrecy and government accountability. Revelations about the government's secret investigation of the phone records of the Associated Press and of Fox News reporter James Rosen, its secret access to private phone records held by Verizon, and its secret PRISM initiative that gives the government access to the records of international Internet providers all raise fundamental questions about government transparency and the state of American democracy.

These disclosures pose at least three central issues: (1) Is the government's action unconstitutional or otherwise illegal? (2) Is the government's action, even if constitutional and lawful, nonetheless bad public policy? (3) Is the government's decision to keep such actions secret legitimate in a free and self-governing society?

With respect to the first question, my tentative conclusion, based on the facts that have been made public, is that these government actions are neither unconstitutional nor otherwise unlawful under existing law. Although I would personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion, it seems reasonably clear to me that these actions, though controversial, do not in any obvious way violate current law.

With respect to the second question, I simply do not know enough to make an informed judgment about whether these actions reflect sound public policy or unwarranted government overreaching. The plain and simple fact is that the very secrecy of these actions makes it difficult, if not impossible, for responsible members of the public to make thoughtful decisions about whether these actions reflect a proper balancing of the competing interests in individual liberty and national security. To make sound evaluations about such matters, we would need to know much more than we do about the ways in which these programs are carried out and the actual importance of the programs in protecting the national security. Secrecy stands in the way of such judgments.

This brings me to the third issue: secrecy. All of these actions were meant to be secret. Neither the targets of the investigations nor the American people were meant to know what the government was up to. In a self-governing society, government secrecy is presumptively illegitimate. Our elected representatives are just that -- our representatives -- and we are entitled to know what they do in our name. This is at the very heart of self-governance.

The notion that we should blindly "trust" our public officials to do what is best for us is naïve, reckless and irresponsible. Such an approach invites illegitimate, inefficient and self-interested governance. Even well-meaning public officials make bad policy decisions because of political and personal self-interest.

Indeed, if government officials are permitted to keep their actions secret from the American people, all sorts of mischief is possible. Human nature being what it is, we can be sure that, in the long run, secrecy can -- and will -- be used by public officials (who are no better or worse than the rest of us) to hide stupidity, corruption, partisan abuse, discrimination, ineptitude, and outright criminality.

As I said before, government secrecy is presumptively illegitimate. But note the word "presumptively." Government secrecy is presumptively, but not absolutely, illegitimate. Despite the grave dangers of government secrecy, there are undoubtedly circumstances in which secrecy is essential.

Most important in terms of the issues now confronting us, government secrecy may at times be necessary for the government to be able to keep the nation safe. To offer a simple example, suppose the government taps the phone of a suspected terrorist in order to learn the identities of his co-conspirators. If the government were required by law to disclose the wiretap to the suspect before it is instituted so the suspect can challenge its legality, this would defeat the very point of the wiretap. Similarly, if the government has a covert operative inside a terrorist cell, secrecy is essential to enable the agent both to gather information and, perhaps, to survive.

These simple illustrations suggest the dilemma. Why does the government want secrecy when it examines the phone records of a reporter in order to determine the identity of the government employee who unlawfully leaked classified information to the reporter?

On the one hand, the government may want to be free to do this in secret for the illegitimate reason of avoiding the hassle of a bitter public fight with the press over the legality or wisdom of its action. On the other hand, the government may legitimately want to do this in secret because it wants to catch the leaker and it recognizes that if it informs the reporter of the investigation, and the reporter then challenges the investigation in court, the leaker will likely learn that he is under suspicion and either flee or immediately leak additional classified information before he can be arrested.

The problem is that, in the real world, government officials, like all of us, often have mixed motives for our actions. Sorting them out is extraordinarily difficult. Nonetheless, because of the demands of a self-governing society, we should operate on the assumption that government secrecy is presumptively illegitimate and that the government should be legally authorized to act in secret (this includes classifying information) only when there is a clear and overriding justification for secrecy. This requirement should be taken seriously.

Moreover, when the government does act in secret, it should always have in place careful checks-and-balances that prevent self-interested or misguided (even if well-meaning) public officials from abusing their authority to keep information from the American people. This is why the Fourth Amendment ordinarily requires the police to obtain a search warrant from a neutral and detached judge before invading an individual's privacy. That same principle should apply whenever government officials claim the awesome authority to act in secret. "Trust us" is simply not a recipe for good government.

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