Those charged with the security of the United States of America from threat say that the threats are real, and they are doing what they have to do to save us from harm. And I believe them. Not because I know anything more than anyone else, but because there has been harm and there are forces out there in the mist that do not look kindly upon my homeland.
So why then am I not an acolyte of Stewart Baker? Because this is nothing more than a “belief,” something I choose to accept in the absence of evidence. It’s faith. And faith only takes me so far. The government occasionally reveals stories of its successes, but they tend to show less success and more manufacture of a success where no threat would exist if the government had kept its nose out of it.
On the other hand, there are far too many stories of harm happening to good people at the government’s hand in the name of protecting us, and these stories provide foundations that don’t require me to squint hard, cover my ears and merely believe. They allow me to know. And what I know isn’t pleasant.
At Techdirt, Tim Cushing writes of one of the government’s primary weapons in the battle against these threats to our security, National Security Letters.
Throw the words “national security” around frequently enough and you might start to believe it actually means something. The EFF’s battle against the government’s use of National Security Letters (NSLs) is being fought mostly under seal (the EFF can’t even reveal whom its clients are). To be sure, there is sensitive material being discussed, but the government’s paranoia has extended so far as to seal documents written by entities with no access to classified or sensitive material.
The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF’s behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly unconstitutional. It also notes the chilling effect this has had on journalism.
The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.
Layer upon layer of secrecy, including the demand that public information be held in secret as well, in order to thwart our enemies who would use this information to accomplish harm. It’s sensible if we accept the initial premise that these threats exist and our ability to prevent harm is dependent on maintaining secrecy from our enemies. But information which is already public, known to those who are sufficiently interested in knowing, like our enemies, makes no sense at all.
Whatever the government’s stated reasons for requiring the brief to be filed under seal, it’s clearly wrong.
“The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”
The government doesn’t know when to quit. It’s sealed brief requirement makes about as much sense as government agencies’ initial reactions to the first few leaked NSA documents — instructing their employees to not look at publicly-available information because the documents were supposedly still “classified.” As if that designation made any sense under the circumstances.
To the extent that there is validity to the government’s point, to its efforts to protect us and save us from harm, the approach of concealment at all costs undermines both the Constitution as well as our willingness to continue our belief.
Perhaps I’m a wee bit more skeptical than most, and also a bit less inclined to accept the government’s word that it has to do this to keep us safe and would never undermine the principles of our constitutional democracy in the process, but the compulsion is to turn cynical and disbelieve the government on every claim it makes.
Knowing a few of the people who work in government, and who look me in the eye and swear that they are doing what they claim to be doing, saving us from the terrorists and doing as little harm to the Constitution as possible in the process, I realize they believe in the righteousness of their cause and methods. As much as I may like you personally, and enjoy an occasional cocktail at your expense, and don’t want to call you mean names because of this, you’re blind.
You have chosen to believe your talking point. You have wrapped yourself up in the cocoon of excuses and explanations, of self-serving rationalizations of why everything you do is for the greater good. You have decided that you get to decide the greater good for the rest of us. You justify this based upon your superior knowledge of “what’s really going on out there.”
But you can only get away with this because you deny me, and others who care, the ability to have this knowledge. And, as with the EFF and the RCFP, even the knowledge of what’s already known.
It’s not that I don’t like you, but that I can’t believe you. It’s not that I think you’re lying, but I am unwilling to let you do whatever you please with my rights because you ask me to trust you. And if your claims of threats are anywhere close to accurate, then you do a terrible disservice to your cause by demanding that any mention of your efforts be under seal, no matter whether there is any rational justification for it or not.
I, like most Americans, want to trust the people who serve in my government. But the road to hell is paved with good intentions, and the demise of our nation is far more likely to come with the kiss of the well-intended than at the hands of a terrorist. That’s what I believe, and it scares me.
Update: Kevin Underhill at Lowering the Bar notes that somebody leaked a classified report:
The McClatchy news service reported Friday that it had obtained a leaked copy of a Senate Intelligence Committee report that contradicts pretty much everything the CIA has said about its Detention and Interrogation Program. Here’s the list of the report’s conclusions (PDF), but let me just break it down for you:
- The CIA tortured people;
- Even under to the DOJ’s definition of “torture,” it tortured people;
- It lied about how many people it tortured;
- It lied about how brutal the torture was;
- It “avoided or impeded” congressional oversight;
- It lied about whether the torture worked; and
- The torture didn’t work.
Democratic Senator Dianne Feinstein said she was absolutely outraged by this. And by “this,” of course, she meant the leak. “If someone distributed any part of this classified report,” she said, “they broke the law and should be prosecuted.”
I don’t know whether I speak for anyone else, but I do not want to be kissed by Senator Feinstein. Oh no, I do not.