Why Secret Law Is Un-American

The system established by the U.S. Constitution requires an informed electorate.

In recent years, the National Security Agency has relied on secret interpretations of the law to justify its actions, as noted in The New York Times, the Wall Street Journal, the Washington Post, and a letter that 26 U.S. senators wrote complaining that "the 'business records' provision of the Patriot Act has been secretly reinterpreted." NSA defenders are fond of saying that its activities are legitimized and overseen by all three branches of government. This elides the distinction between Congress as a body and small subcommittees with access to classified information: A subcommittee can be quietly co-opted in a way that Congress cannot.

The notion of a secret body of law is incompatible with the American system of government. Understanding why is as easy as consulting the Federalist Papers, the most thorough explanation the Framers gave us of their republican design and its logic. 

The House of Representatives is meant to be responsive to ever-changing popular opinion in the country's many congressional districts. "As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people," James Madison wrote in Federalist 52. "Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured."

What good are frequent elections if the people are ignorant as to the actual policies their representatives have put into place? National-security state apologists would prefer a system whereby the people elect representatives and trust them to act judiciously in secret. The design of the House presupposes constant reevaluation of a legislator's actions. Americans watching the debate over reauthorizing the Patriot Act couldn't meaningfully lobby or evaluate the performance of their representative. They didn't know the law had been secretly interpreted to allow mass surveillance. The secret interpretation subverted the ability of the people to evaluate their representatives.

The secrecy surrounding surveillance law also meant that many House members themselves were ignorant of what they were voting upon, sometimes because they failed to take advantage of secret briefings, other times because they were incapable of understanding the content of those briefings without outside help, and still other times because the national-security state deliberately withheld information. 

Federalist 53 states:

No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. 

In other words, outside help is something legislators are expected to seek by design. Secrecy renders these legislators incompetent by denying them a source of vital information that was presupposed by the men who designed our system of government. 

Federalist 57 ponders the loyalty of legislators in the House to the American people, and explains why they won't be captured by special, elite interests. "They will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents," it states. "There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment."

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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