Why Secret Law Is Un-American

By Conor Friedersdorf
a4gpa/Flickr

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."

For many members of the intelligence committees, honor, favor, and esteem seem to be most lavishly conferred not by constituents but by members of the national-security state. The gratitude owed the people is often directed toward these insiders, in return for being included in the club of serious people with security clearances.

"Those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature," Federalist 57 goes on. "His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people."

But legislators who advance classified policies obscured from the people need no longer worry about preserving their favor, or avoiding a popular backlash against their approach.

The public is never meant to know about their actions.

As Federalist 57 concludes, "All these securities ... would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised."

Absent Edward Snowden's revelations, how meaningfully could Representative James Sensenbrenner's constituents review his exercise of power? Is it not reasonable to suppose that the change in perspective his constituents have been given informed his own change in position on the Patriot Act?

Federalist 62 concerns the Senate, but contains a passage relevant to secrecy, implying it "poisons the blessing of liberty itself." Musing on "the effects of a mutable policy," it states, "it will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?"

Surveillance law could not be read or understood by the people. It changed in such a way that few could anticipate what it would be tomorrow. It was revised without being promulgated, and was little known and less fixed.

It was, in this way, un-American.

This article available online at:

http://www.theatlantic.com/politics/archive/2014/01/why-secret-law-is-un-american/282786/