In Thursday’s speech on “The Future of Our Fight Against Terrorism” President Obama briefly mentioned “a recent example of the challenges involved in striking the right balance between our security and our open society.”
That example was the Department of Justice secretly subpoenaing two months of phone records from hundreds of Associated Press journalists during an investigation of intelligence leaks. The DOJ also monitored the phone calls, emails and physical movements of Fox News reporter James Rosen during a similar investigation into a 2009 leak. They’ve since accused (but not charged) Rosen of breaking the law by asking government officials for classified information.
The AP and others have called those “challenges” more like unprecedented, unconstitutional government overreaches and threats to free media. Unfortunately, this type of surveillance is far from unprecedented and – current uproar notwithstanding – isn’t going anywhere.
Despite his understatement, the President is correct that there is a balance to be struck between security and transparency. No doubt some intelligence must be kept secret for the good of the country. The problem, of course, is that only the government can be sure of which intelligence that is. And because even the methods by which the government decides to gather and disseminate information is secret, the rest of us must simply accept that wherever the government places the fulcrum is the right place for the balance to lie.
To see just how heavily the deck is stacked in the government’s favor, consider the Supreme Court’s decision in the case of Clapper vs. Amnesty International in February. A group of journalists, lawyer and activists set out challenge the constitutionality of the broad expansion if the Foreign Intelligence Surveillance Act in 2007. That expansion effectively removed any need for the government to get a warrant before spying on American communications with someone “reasonably believed” to be in a foreign country. Instead, a secret, internal court grants permission.
Before it could even challenge the act’s constitutionality, however, the group had to prove that the law had caused it “injury-in-fact.” The journalists bringing the suit claimed the government would almost certainly spy on them at some point and so the law had forced them to spend time and money to alter their methods of foreign communication.
The 5-4 decision the Court handed down rejected that claim. It said any individual claim to being a likely victim of government surveillance was “mere speculation” because “respondents have no actual knowledge of the Government’s § 1881-a targeting practices.” (Section 1881-a is the relevant FISA law).
The decision goes on to say, “even if respondents could demonstrate that targeting of their foreign contacts is imminent, they can only speculate as to whether government will seek to use Section 1881a-authorized surveillance, rather than other methods.” Thus the case was thrown out.
Note that the Court is not even affirming the constitutionality of the warrantless wiretapping law. They are saying the challengers do not even have the right to ask that question because they can’t prove the government will use FISA to spy on them.
Why can’t they prove that? First – because they have no idea who, specifically, the government will spy on. Of course they don’t. Those targeting decisions are made in secret and then approved by a secret court.
Second – because even if they could know who, specifically, the government was spying on, they could not prove that the government used the FISA law itself to get approval for that surveillance. Because the government has lots of different justifications for spying.
The circularity is laughable, but the implications are serious. The government’s judgment can never be questioned because the government controls the means by which the question is asked.
The same shielding is at work in the executive branch right now.
When a room full of journalists asked Attorney General Eric Holder why it was necessary to collect two months worth of phone records in connection to an intelligence leak about a plot that agents had long since foiled, Holder responded “I don’t know about the facts, but based on the people I know, I think that that subpoena was done in conformance with DOJ regs.”
Holder apparently thinks that is a satisfying answer, even though he’s essentially saying that the DOJ doesn’t even have to defend itself with evidence. It just has to assert that aggressive action was needed and whatever was done was inevitably done legally.
But that “trust us” defense is rapidly crumbling in the Obama administration. Consider the letter Holder sent to Congress on Wednesday about US drone strikes against its own citizens as an example of what the government thinks its okay to tell us.
The letter marks the first time the Obama team has acknowledged that it killed Anwar al-Awlaki, an American citizen, in a drone strike in Yemen in September of 2011.
The strike and al-Awlaki’s death was heavily reported during that same month – more than a year and a half ago. Yet in Holder’s letter, he notes that he has finally been given permission to release “information that until now has been properly classified.”
So at least one of the things the government feels it is their right not to tell us is a fact everyone has already known for a year and a half. Which way does that balance beam seem to be tipping?
None of this is proof the government has in fact done anything inappropriate, illegal or unconstitutional. But that’s just the point. There is no proof possible. In a world where information is power, the government is so powerful we can’t even ask what information it has.