GOVERNMENT SECRECY is unfortunately sometimes necessary, but it is so fundamentally at odds with the precepts of an open democracy that when it’s employed, it has a way of getting out of hand.
The dangers of that truism were in full view Friday as the U.S. 6th Circuit Court of Appeals dismissed a lawsuit challenging the federal government’s Terrorist Surveillance Program. Under that program, President Bush authorized the National Security Agency to snoop, without warrants, on phone calls and e-mails between Americans and people outside the country who are suspected of being connected to Al Qaeda. A group of journalists, lawyers and academics sued, saying that the prospect of being wiretapped affected how they communicated with sources and clients abroad. Last year, a district court judge agreed and moved to halt the program. That judge roundly criticized the program for its wholesale violation of the 4th Amendment’s guarantee against unreasonable government searches, which this spying enterprise unequivocally tramples.
A divided panel of the 6th Circuit overturned that ruling, and on the least satisfying grounds. The problem, the court concluded, is that the plaintiffs in the case cannot show that they were themselves the subjects of wiretaps. That denies them sufficient standing to bring a case. “The plaintiffs,” noted the court, “do not, and cannot, assert that any of their own communications have ever been intercepted.”
Why can’t they demonstrate that? Because the government invoked the “state secrets” doctrine and refused to tell them.
So the secrets doctrine is used to deprive plaintiffs of the information they might use to challenge the secret program. It is a perfect, logical circle that shields the program from any challenge, even though the court itself acknowledged that there is a “cascade of serious questions” about it.
To name a few: Is the government violating the Constitution by imposing wiretaps without warrants? Is it violating the 1st Amendment by chilling protected speech? Has the NSA overstepped the principle of separation of powers by acting unilaterally in an area in which the Constitution gives courts the right to review the searches of spies and cops? Those are meaty issues, worthy of deliberation in an open courtroom and, thankfully, the subjects of stories by brave and enterprising journalists.
But one secret begets another, and so the court allows the NSA to go on with its shady business. The consequences are not hypothetical. A lawyer, fearful of being wiretapped, elects not to communicate with a client. A journalist, worried about betraying a source, drops a story. A scholar, reluctant to invite government scrutiny, chooses another topic. The law is diminished; Americans learn less about the world. And with that, the retreat into silence further closes a society predicated on the idea that open debate strengthens us all.