The case against secret government

Guy Fawkes

My grandfather once said that you know you’re doing something wrong when you don’t want to tell anyone about it. Unless the NSA is using our phone records and social media data to plan an awesome surprise party, there is something suspect in the claim that domestic surveillance was kept secret for our own good. Secrecy is antithetical to democracy. Tim Weiner argues as much at Bloomberg, where he points out that presidents from LBJ to GWB have demonstrated that you can’t trust the executive. At Esquire, Charles Pierce puts a simultaneously finer and more vulgar point on it when he asks that the federal government please tell him what it is doing in his name.

The US federal government is supposed to be our reflection, not our shepherd. If the American people would stupidly oppose any domestic surveillance program if we were told about it, it is still our right to oppose it. Democracy is not about letting the people govern as long as they are right. Nobody said the United States is a government of the people, by the people, except when government knows better. The entire constitutional project is to create a republic that reflects the people’s will as closely as logistics and centralized executive power will allow. The mechanisms for translating the people’s will into law—the democratic elements of our democratic republic—don’t work if the people do not know what their government is doing.

Consider the FISA courts, a secret branch of the judiciary that issues secret rulings on whether it is legal for the American government to spy on the American people via the NSA. One can argue that secrecy in this area serves law enforcement objectives—even objectives of national security, which is law enforcement on a grander scale. From a democratic perspective, on the other hand, there can be no argument for a judiciary that secretly rules on the legality of a secret government initiative. In that context, the function of secrecy is to uncouple the behavior of government from the will of the people.

At a Senate hearing two months ago, Ron Wyden (D–OR) asked director of national intelligence James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” “No, sir,” Clapper replied. “Not wittingly.” That answer was patently false, as Pierce points out. If a government program is kept secret even from our elected legislators, in what way can that program meaningfully be said to express the will of the people? What is it but government inflicted on us, rather than conducted by us, regardless of whether it is for our own good?

There are plenty of arguments that non-democratic systems of government provide us with greater security or well-being. But the American project is not about achieving the most secure state, the most militarily dominant state, the most economically successful state. It is about constructing a state that maximizes individual liberty and the government’s responsiveness to popular will, within the bounds of stable national functioning.

Maybe broad domestic surveillance is necessary for the United States to function stably in 2013, but that is an issue for the American people to decide through vigorous public debate—not for the executive to decide in secret, with a secret branch of the judiciary to validate him. It is not democracy for the government to act in secret and then, when it is caught, for the President to tell Americans it is not a big deal.

Historically, it has not been the role of the chief executive to tell Americans what is and is not a big deal. We tell the President what is important, and his job is to act according to our will. He is given a certain amount of autonomy to implement our will as he sees fit, even to defy it sometimes, but we the people should always know what he is doing. Always. Otherwise we lose the ability to evaluate our government, and the right of the people to evaluate the government—through elections, through public outcry, through every means short of armed revolt—is the essence of republican democracy.

We don’t elect people to operate a secret government that relieves us from the burden of controlling our own country. We don’t vote for men and women to run a shadow war on our behalf. We vote so that those people have to do what we want or get the fudge out of government. The system becomes meaningless when government won’t tell us what it is doing.

Maybe telling us that the NSA was spying on us would have made it harder to catch terrorists, but catching terrorists is not the primary function of the US government. The primary function of the US government is to arbitrate and implement the will of the American people. By definition, it cannot do so in secret.

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  1. If 56% of the country wills it, isn’t the program doing the people’s will? Not sure “the people’s will” is the fulcrum of the debate here.

    The federal government is neither our reflection nor our shepherd. It is, as Ezra Klein described it, an insurance company with a standing army. It mitigates certain vulnerabilities (rain, disease, old age, pollution, attack) by collectivizing them. Sometimes it builds things, too — like roads, schools … and telecom infrastructure. It can’t enter your house without cause, but it can repossess the information network it built.

    The potential for abuse is staggering, but even with this massive skeleton key to the internet called PRISM, the content of your private communication is not open; only some algorithmic rendering of it. Put another way, the police can’t eavesdrop to decide if they should kick open your door, but they can respond to a loud noise coming from it.

    In any case, you’re absolutely right that the whole compact/shareholder-agreement that is representative democracy doesn’t work without layers of accountability and oversight that connect, at some long-vanished point, to the individual citizen.

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  3. The entire second paragraph is deeply flawed. The constitutional framers clearly expected governmental officials to sometimes do unpopular but necessary things. Legislators and the president have terms while judges have lifetime appointments to protect them from knee-jerk popular opinion.

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