Belaboring the Obvious

Saturday, April 15, 2006


... meet the National Security State of America. Harvard School of Law professor William Stuntz sort of suggests that the nation should go off the deep end with an anvil tied to its leg regarding individual privacy rights and government transparency.

Some of us are inclined to say, "now just wait a minute, bub." As Dan Solove says, the motivation for this sentiment may be 9/11. For those who claim that 9/11 changed everything, no, it didn't. But, it did make a lot of otherwise ordinarily sensible people stupid, fearful and begging for their authoritarian daddy to protect them.

At a time when secrecy in government--for political purposes--has become the norm, when Executive Branch overreach has compromised the privacy of potentially millions of citizens, Stuntz proposes that we have even more of the same in order to avoid even greater abuses.

The system, as practiced, is already fraught with Constitutional hazards, and has been for decades. Government dirty-dealing and underhandedness have been regularly hidden from public view by a security system we're told, paradoxically, is there to protect our rights and freedoms.

The security arrangements between the government, its employees and its citizens which have evolved over the last sixty years have only marginally aided national security but have gone a long way toward preventing citizens--the "owners" of the government--from knowing what their government is doing in their name. Scott Armstrong, one of the founders of the National Security Archives at George Washington University, has said that all administrations spend the greatest portion of their energy, with regard to secrecy, in keeping information from the public and the press. Its next-largest outlay of effort is in denying information to Congress. The next largest is in keeping other government agencies in the bureaucracy from knowing what it is doing, while the least amount of effort is directed toward preventing foreign powers from finding out state secrets (the latter being the ostensible reason for such a security apparatus).

All governments are artificial constructs of one sort or another. Our particular government, as delineated by the Constitution, places the rights of the citizen over those of the government itself. The Bill of Rights proscribe the rights of government with regard to those of citizens. There are some things, we decided almost 220 years ago, that government may not do at all, and that in its powers to detain citizens, it must adhere to rules protecting citizens' rights.

What Stuntz and others, post-9/11, have forgotten is that the President, as with all government officials, takes an oath to defend and protect the Constitution. It is implicit in that oath that defending the Constitution is a defense of the citizens--and a defense of their rights. Using the security system to cloak a wholesale violation of citizens' rights in an effort to "protect" them is an oxymoron, yet that is precisely what is happening at the moment with regard to the NSA spying program. The Catch-22 in the system is that those wholesale violations would go largely undetected were it not for government workers in the system revealing the existence of illegality, and yet, for them to do so presents grave risks to their own continued employment and freedom. Just ask Daniel Ellsberg.

We are told that government workers bound by their security agreements have recourse within their agencies to report wrongdoing. However, as we have seen with the illegal program authorized by the President, reporting those illegalities did not stop the program (if the President authorized it, it's okay, regardless if it violates law). Going public with their concerns has generated one of the most intensive investigations in recent years to identify the whistleblowers. The truth of the efficacy of that internal system of self-correction is best laid bare by the case of Sibel Edmonds. Even though the FBI's Inspector General verified most of her claims about shoddy work and security lapses inside the FBI's translation department, she is effectively unable to either make her case in public or receive fair treatment in the courts because the government has invoked state secrets privilege. There is no assurance, therefore, that the institutional problems she identified will ever be corrected, or that violators of law will be punished--or that the public will ever know what is being done by its government in its name.

Most security law, and the FOIA, says that the government cannot use the classification or security systems to evade detection of law-breaking, and yet, the government has lately gone to great pains to find and prosecute the very people who bring attention to law-breaking inside the government, because, by doing so, they have violated their security agreement with the government. That Catch-22 ought to be resolved, once and for all, with a whistleblower protection act that genuinely protects government employees who act in the best interests of their employers, the citizens of the country.


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