"He's taking it upon himself to make certain things no longer possible, or much harder to do," Marshall writes. "To me that's a betrayal. I think it's easy to exaggerate how much damage these disclosures cause. But I don't buy that there are no consequences. And it goes to the point I was making in an earlier post. Who gets to decide? The totality of the officeholders who've been elected democratically -- for better or worse -- to make these decisions? Or Edward Snowden, some young guy I've never heard of before who espouses a political philosophy I don't agree with and is now seeking refuge abroad for breaking the law?"
There are hypothetical scenarios in which I would endorse this argument. Imagine that an anonymous leaker believed women shouldn't be allowed to be covert agents in the CIA. So the leaker began to leak the identities of every female agent, making it "no longer possible" for them to serve. That would be illegitimate for a lot of reasons. One of them is the nature of the secret itself. The American people know there is a CIA, that it has covert agents, and that some of them are female. That we don't know the identities of the particular women doesn't undermine our democracy: The policy is subject to debate and challenges through the normal methods.
It's a legitimate secret -- and leaking that secret would be inexcusable.
But Marshall's post seems to legitimate a dicier sort of secret. He seems to think that the "totality of officeholders" is justified in pursuing whole policies that are unknown and unchallengeable. Think of what it means to argue that ongoing surveillance on almost all Americans is a legitimate secret, and that it's illegitimate to render its covertness "no longer possible."
If that policy is a legitimate secret, it means ...
- that seizing and storing the phone records of all Americans would never be openly debated in Congress.
- that the propriety of the policy would never be a campaign issue, and could not be raised by challengers in Congressional races.
- that it would never be subject to challenge in open court.
Is that acceptable to Marshall?
I'd like to hear his general theory of legitimate government. Does it include policies adopted in secret and run totally outside the normal methods of accountability? Are those just as legitimate as any other policy? If so, Marshall's theory of government isn't a Madisonian democracy.
As William Galston, a political theorist and former White House policy adviser, put it at Lawfare, "The driving principle of our constitution is the fear of tyranny. Madisonian institutionalism is designed to prevent dangerous concentrations of power, in part by setting constitutional institutions against one another, in part by allowing the people to see and assess what is being done in their name. I am increasingly skeptical that our surveillance state meets either of these tests."
What Marshall doesn't grasp is that -- like Snowden's leaks -- secrecy itself renders "certain things no longer possible." What's more damaging to representative democracy, denying government its secret policies, or denying the citizenry the ability to influence major policy debates?
The answer is clear.
Above I noted that it would be illegitimate to leak a secret like the identity of all CIA agents. I confess that it's harder to articulate just when a secret policy crosses into the realm of diminished legitimacy. It's a judgment call. There is no bright line. But I regard Snowden's leak as obviously on the side of revealing a secret illegitimately kept, for reasons I lay out at length here. I'd encourage Marshall to grapple with that. Here's an initial prompt: Given that attempts to challenge NSA surveillance in court have been subverted, national-security officials have blatantly lied to Congress about its nature, and the author of the legal language supposedly justifying it swears it violated the Patriot Act, why should we act as if it's as legitimate as any other policy?
As Galston said at the conclusion of that Lawfare post, "it is time for us to ask ourselves -- as a country -- whether the balance we're striking is the right one. To do that, the people and their representatives must be in possession of the facts--and empowered to discuss them freely. Our government should stop asking us to sacrifice democratic deliberation on the altar of secrecy."