Before anyone would have believed that there could be a court in the United States of America that was closed to everyone but prosecutors, there was a need to keep certain things from prying eyes. There was a file kept in the clerk’s office at the old federal courthouse in the Southern District of New York, that held search warrant applications that had yet to produce arrests and indictments. You see, every paper signed by a judge has to be kept somewhere.
Not too many people knew about this file. It had a name and number, and could be requested from the clerks. And in it were secrets. Hard to find secrets, but secrets, there, in a file, for all the world to see if they knew the secret name and number. Then came FISC, the Foreign Intelligence Surveillance Court. Even though it violated every precept of what a court was supposed to be since the Spanish Inquisition, it somehow didn’t bother us too much.
In 1978, Congress created the first secret court in our history — the Foreign Intelligence Surveillance Act (FISA) court. Staffed by Article III judges borrowed from federal district courts, this specialized tribunal issues surveillance warrants for foreign intelligence purposes. Understandably, given its mission, FISA court proceedings are ex parte and mostly secret, although the Snowden revelations in 2013 forced a partial lifting of the veil.
That’s not entirely correct, as criminal defense lawyers became aware of FISC long before, and raised holy hell about it, to which an appreciative nation went “meh.” Of course, there was no internet back then, and the media wasn’t interested because everyone understood that the Constitution wasn’t “a suicide pact,” and we had to fight the commies lest we be forced to drink bad vodka. Our American fetish with law happening in a room where evil eyes could watch was obviously idiotic, and so a nation weaned on grossly sexist spy movies understood the need for secrecy.
Once we accepted the premise that it was stupid to let the criminals know what the good guys were doing to catch them, it was a hop, skip and jump.
While the FISA court remains the only congressionally authorized secret court in our nation’s history, secret dockets are another matter. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to our cell phone and Internet communications and records. This law authorized court orders compelling such access to be sealed indefinitely, “until further order of the court”; in practice, this has meant that these surveillance orders are permanently sealed.
And the orders forbid the revelation of their existence to the target, because if the target found out, they could flee to Russia, stop being all criminally, destroy the evidence and spend their time finding a decent lawyer. Frankly, some perps would do exactly that. Others would not. Who knows what the rest would do?
How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress. That is precisely the problem.
No one knows, and that’s the nature of secrecy. There are sound, logical arguments for why our legal system has gone from open, if somewhat less than transparent, to officially secret. But the downside is that it’s officially secret, as in, “trust us, we do this for you.”
Without public access, one cannot know whether fair treatment is accorded regardless of status. Without publicity, judges have no means of demonstrating their independence. Without oversight, one cannot ensure that judges, tasked with vindicating public rights, are loyal to those norms. Without independent judges acting in public and treating the disputants in an equal and dignified manner, outcomes lose their claim to legitimacy. And without public accounting of how legal norms are being applied, one cannot debate the need for revisions.
This is a test of principle. It’s not irrational to keep our secrets from the people who would commit crimes or do our nation harm. Telling the people who are trying to harm other people how to avoid being detected is pretty darn foolish. No one wants to see crimes committed or an attack on our soil. While it’s often noted that the fear card is played to manipulate public opinion, to trade off freedom for some transitory sense of safety, this doesn’t mean we wouldn’t prefer to have actual safety, or don’t care that crime causes real harm to real people.
The only problem is that we’re constrained to trust the government. Not all of the government, as much of it has no clue what’s really going on any more than the public does, but some of the government. Some judges. Some agencies. Some prosecutors, though not all because they might someday become defense lawyers and spill the beans. This is where the question of principle comes into play.
Do we give up the ability to keep our courts dark to protect us? It’s easy to respond, “no way,” because the government has proven itself too good at lying, and only occasionally gets caught being totally full of shit. And even these well-intended, honorable judges, have a wee bit of bias in favor of trusting the government. Sometimes too much. But then, if the warrants are stuck in a file in the courthouse, and some rascally lawyer finds out where they are and tells the world, say on his blawg, where to find them, the bad guys will learn of it and avoid detection.
Are we prepared to suffer harm in the name of principle? There will be harm. You might be its victim.