Secrets

[I have revised this to correct some errors. See the endnotes.]

There are people and governments that want to harm people in this country.  They want to take your money, your property, or even your life.  There are people who want to use force to overthrow the elected government and replace it with something more to their liking.  This is the justification for spying and keeping secrets.  People who threaten you and your country plot in secret, and the government – law enforcement [1] and the defense department in particular – have a duty to protect you.  This is established in the Constitution and is so important that providing for a common defense is one of the very first things mentioned.  To accomplish this mission we must spy on adversaries and even potential adversaries.  The direct implication is that we must keep secrets, such as the identities of our spies and the means we use to spy.  I believe this is all true and completely morally justifiable.  I do not have any problem with the fact that the government must keep secrets, and nor should you.

The scope and lack of fundamental oversight of the NSA data collection program is poison to representative democracy.  The statement “if you have nothing to hide, then you have nothing to fear” is the argument of the oppressor and tyrant, and apparently I need to explain why this is so.

The NSA has been collecting vast amounts of information and can, at a moments notice, direct its data collection to specific targets.  I do not have a problem with this as such, but this kind of extraordinary power requires extraordinary oversight or it will become what it has already become: poison to the republic.  You may have nothing to hide, but can you – with certainty – say the same of your family, your friends, your employer?  Can the guardians of this information use it as leverage to get other agents of the state – say the IRS or prosecutors – to turn your life upside down if you don’t comply with that they want?  Can they do this to your family and friends?  You have a completely morally justifiable right to privacy – you have the right to keep secrets.  When the government wants to invade your privacy they are required to justify a compelling interest and obtain a warrant.  Again, this is in the Constitution.

Even if you believe that this information would never be used against you and you do not care if it is used against family and friends, you must realize that it can be used against the people who make, enforce, and interpret the law, your rights, and the rights of your friends and family.  Information is power.  It only takes one morally-questionable person with access to this level of information to upset the balance and corrupt the entire system.  We can be absolutely confident that this will happen, even if we are to believe it has not yet [2].  Government officials are people, with the same failings and weaknesses as everyone else throughout our history.  This is why the scope of collection and lack of oversight is poison.

The American citizenry have a responsibility to educate themselves on issues and express their opinions through polls and elections.  The cannot make good decisions if they are not properly informed.  They cannot hold government officials accountable for actions they know nothing about.  This is the rationale behind “sunshine laws,” the Freedom of Information Act (FOIA), and other disclosure rules.  While necessary, secrecy can – and does – breed corruption that circumvents the rule of law.  Thus when government officials make the extraordinary decision that they must conduct business in secret, they must likewise be subject to extraordinary oversight.  The government does not have the right to keep secrets.  Instead, it must demonstrate a compelling need.

Make sure you understand this.  You have the right to privacy.  Invading your privacy demands that the government demonstrate a compelling need.  The government does not have a right to privacy.  Keeping secrets from you demands that the government demonstrate a compelling need.

It is now clear from the disclosures about the NSA collection programs that there has been insufficient oversight.  In the rush to protect the people from the threat of terrorism we have, in practice and in policy, reversed the above relationship [3].  The government has a presumed right to monitor everything we do and we are presumed to have no right to know the nature and scope of this monitoring.  This is unconstitutional, immoral, and dangerous to everyone.

The Foreign Intelligence Surveillence Act (FISA) establishes a secret court and processes to obtain warrants in secret.  It was created to protect against the abuses described.  We now know it has failed in its mission [4].

It is common to argue that we have tipped the balance between liberty and security too far in favor of security.  This ignores two essential facts.  First, what is the purpose of our efforts at security if not to secure liberty?  And second, how does placing unreasonable, unregulated power in the hands of officials who act unaccountably in secret give us security?  It does not and cannot.  All this does is internalize the threat and make us less free and less secure.  The case of Edward Snowden illustrates this point well.  Mr. Snowden has revealed some of the means by which we collect intelligence on adversaries and potential adversaries.  In a manner of speaking he has revealed the identities of our foreign agents.  This is treason and makes us arguably less secure.  These revelations have damaged the reputation of the United States abroad, complicating diplomacy, and damaged the reputation of our technology firms, threatening a vital sector of our economy.  Mr. Snowden felt compelled to make these revelations, and was capable of doing so, because of his unrestricted access to information and the legitimate desire to expose illegal activities.  We now also know that attempts on his part to alert the proper authorities to what were clearly illegal activities likely would have failed [5][6].  Lack of proper oversight of these programs makes these kinds of revelations much more damaging and also inevitable.

I will close by noting that this situation is not just a threat to representative government in the United States, but to all governments, everywhere.  The United States has global interests, and involves itself in the affairs of other nations.  Whether or not this is necessary, it is simply true.  The United States has interests in how other leaders conduct their affairs, and even in who these leaders are.  The collection efforts of the NSA can be turned on those leaders to compel their cooperation.  That is at least part of the purpose for collecting this information, after all.  This is done in the name of all Americans, by their government, in secret.  There must be accountability.  It is simply true that “injustice anywhere is a threat to justice everywhere.”

[1] Law enforcement does not have a duty to protect you (see Warren v. DC).
[2] It has since been documented and admitted that this has, in fact, happened. See this CNN story, for instance.
[3] I imply that this has happened recently. That is not true – we can trace much of this back to the Reagan administration. See this Washington Post article.
[4] See this CNN article, or especially this article in the Washington Post.
[5] I imply that Snowden did not attempt to “go through channels” with his concerns. There appears to be a difference of opinion on this matter, so I will simply state that we do not know at this time what he did or did not do prior to stealing the information and fleeing the country. See this article in The Guardian.
[6] See the cases of Daniel Ellsberg and William Binney.

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