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Secrets---Yours and the
Governments *
An Impeachable Offense
Find Law.com
Edward Lazarus
Recently, various Bush Administration initiatives have
combined to dramatically reduce the power of individuals to keep
their affairs secret from the government. Yet at the same time,
the Administration has repeatedly denied the public basic
information about how the government conducts its affairs.
This potent policy combination -- in which individuals are
stripped of privacy even as the government is further swathed in
it -- is seriously jeopardizing our claim to be a free society.
And it is only worsened by the Administration's overall strategy
of changing federal law not by legislation, but rather by
regulation and executive order -- and thus without public
hearings and debate -- and of keeping the press at arms length
from information about the war effort.
Destroying Individual Privacy; Detaining
Witnesses as Well As Suspects
First, the Department of Justice decided to arrest, interview,
and detain, in the course of the September 11 investigation, more
than 1000 Middle Eastern men -- some of whom are being held not
as suspects but simply as supposed "material witnesses." Then DOJ
refused to reveal their identities, the charges against them, or
even the reason why such information is being withheld.
Meanwhile, new DOJ regulations were crafted to allow the
government to listen in on the previously sacrosanct
communications between detainees suspected of terrorist acts and
their lawyers.
Now DOJ is ordering federal agents and local police to conduct
"voluntary" interview with 5000 young Middle Eastern men who have
entered the United States in the last two years from countries
with links to terrorism. But these men must know what is likely
to happen if they do not show up "voluntarily": They will be
added to the ranks of the detainees and if they even so much as
seek to consult a lawyer, the government will listen in.
Any illusion that these men might have had that their lives
were private has now been shattered. Nor should the rest of us
retain any such illusion. New laws have expanded the government's
power to eavesdrop on phone conversations and to intercept
electronic transmissions, such as e-mails and instant
messages.
Not Just Military Tribunals, But Secret Ones
The government's "privacy," however, is well protected -- even
though in a democracy, the idea of a private government should be
unthinkable, an oxymoron. Over the last week, for instance,
attention has turned to several Administration initiatives
designed to protect the government's secrets from public
scrutiny.
John Ashcroft has declared, for example, that the
Administration not only intends to try suspected militants before
military tribunals, it intends to do so wrapped in the darkest
shroud of secrecy. According to one military officer, the
government may limit public disclosure of a tribunal's
proceedings to such bare bones facts as the defendant's name and
the sentence meted out (including, one must suppose, the death
penalty).
Indeed, at least in theory, under the current Bush plan, a
foreign national could be arrested on a warrant issued by a
secret court on the basis of secret evidence; tried before a
secret military panel in a secret location using secret
procedures based on evidence kept secret even from the defendant;
and finally executed with no public disclosure and little if any
review by a civilian court.
Keeping Presidential Decisions Secret, Too
Moreover, the Administration believes that government secrets
should be kept for as long as possible. For example, last week
President Bush dealt a considerable blow to historians seeking to
enlighten the public about presidential decision-making in the
future.
Except where national security is potentially jeopardized,
federal law provides that presidential papers ordinarily will be
opened for scholarly inspection 12 years after a president leaves
office. Bush has now extended the 12-year delay in disclosure --
thus keeping secret hundreds of thousands of documents from
Ronald Reagan's tenure that were about to be made public.
The measure may, however, be geared towards protecting not
just President Reagan, but President Bush -- the current
President Bush. If the change is retained by future President to
protect this President's own papers, then Bush will have
guaranteed that what we do not know now, we may never know --
keeping our history not only out of today's newspapers, but also
out of tomorrow's history books.
How the Different Sets of Restrictions Work in
Tandem
All of the initiatives discussed above have triggered comment
and controversy. But few have observed the insidious way they all
work in tandem: The government initiatives shielding its own
actions from public view significantly compound the dangers in
the government's new restrictions on personal privacy.
Certainly, a case can be made for several of the
Administration's anti-terrorism initiatives. Our wiretapping laws
needed revision even before September 11. And in the aftermath of
the attack, it made perfect sense to combine a policy of tough
enforcement of immigration laws with some measure of preventive
detention, in order to disrupt any potential follow-up plans the
terrorists may have hatched. Finally, in some situations (albeit
very limited ones), military tribunals may indeed be preferable
to civilian courts.
But such measures, especially ones that inevitably will cause
individual hardships and injustices, are much more difficult to
justify or accept when the government simultaneously decrees that
the public has essentially no right to know about the operation
of its expanded powers of law enforcement.
The Inability to Know If Government Restrictions
Are Justified
As matters stand, for example, we have no basis for assessing
whether Attorney General Ashcroft's policy of dragnet detentions
continues to serve any legitimate national security purpose or
has yielded any real evidence in the pursuit of the terrorists.
For all we know, the detentions are continuing precisely because
the Administration is afraid of releasing innocent detainees who
will go directly to the press, en masse, and criticize them, at
an inconvenient time in the war on terrorism. Worse yet, those in
charge act as if we have no right to know whether the trade-off
they have exacted from our civil liberties has yielded any
fruit.
The government's arrogation of far greater power than it had
prior to September 11 is particularly dangerous when coupled with
its insistence on much less accountability. Indeed, in the
absence of a serious explanation from the Administration (and
there has been none), one is left with the sinking feeling that
Bush's team is gripped with either a consuming fear of failure
or, more darkly, a genuine Star Chamber mentality. Either way,
the Administration's strategy is formula for governmental error,
abuse, and cover-up.
Earning Our Trust
At bottom, the Administration's program, buoyed by exuberant
polling data, amounts to a giant "trust us." But that raises the
troubling question of whether the Administration has earned our
trust.
Prior to September 11, the great achievement of the Bush
Administration was the passage of a giant individual tax cut,
which was sold to the American people on the basis of a equally
large lie. The lie concerned the effect the tax package would
actually have on the (now illusory) budget surplus and as many
economists vouched, Bush's numbers are off by a trillion.
Since September 11, the Administration's major policy
initiative is a giant corporate tax cut which, again, is being
sold to the American people on the big lie strategy for marketing
bad ideas. Although countless economists agree that a corporate
tax cut, especially a retroactive one (as this largely is), will
have little or no short-term effect on the economy, Bush and his
cronies in Congress are selling it shamelessly as a short-term
"stimulus" package for the ailing economy.
In between these great bookends of fiscal policy, lie a host
of other political shenanigans. Recall, for example, the
cooked-up energy crisis that the Bush-Cheney team tried to
exploit as a bailout for their energy mogul friends, such as the
folks at Enron.
In light of this history, if the Administration wants to
curtail civil liberties in the name of security, then let them do
so as openly as possible. A basically forgiving and trusting
public should be able to assess over time whether the trade-offs
their leaders have mandated are justified and wise. In short, to
borrow a timeworn phrase, let us trust, but verify.
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Rep. Dick
Armey derided it as "the lowest thing on the American radar
screen" while Sen. Mitch "Money Is Free Speech" McConnell took
time out from his busy fund-raising schedule to chastise the
editors of The New York Times for "continuing to obsess" about an
issue that has completely "dropped off the list" of the public's
priorities. In other words, "No one cares, why should we?"