Barton Gellman, who led a Washington Post team that revealed NSA surveillance measures, has argued that our interest in “self-government” requires that the public know “the secret policy decisions the government is making for us.” I have responded that our interest in self-government is sufficiently vindicated in cases like spying that require secrecy as long as the political process determines who makes the secret decisions and provides for checks against abuse.
The work of the NSA meets this test because it is conducted under the direction of our elected president and is subject to review by our elected legislative branch. It is also subject to judicial review.
I don’t mean to suggest that this system is ideal. Ideally, the public would know what decisions the executive is making and Congress and the judiciary are countenancing. The public could then punish elected officials with whose balancing of national security and privacy interests it disagrees. That’s self-government at its best.
The problem, of course, is that if the public knows what secret surveillance measures the NSA is taking, the measures will no longer be secret. They will then become less effective, if effective at all.
Moreover, although less than ideal from the standpoint of self-government, secret decisions that balance national security and privacy interests are not entirely insulated from public scrutiny. The public can’t review the decisions when they are made, but it can observe the consequences and punish elected officials for bad ones.
If the government errs on the side of privacy interests, fails as a result to connects dots, and therefore fails to learn about a deadly attacks, the public will learn about the failure, as it did following 9/11. It probably will become irate.
If, on the other hand, the government engages in abuses such as using information obtained from secret surveillance against Americans for reasons unrelated, or insufficiently related, to fighting terrorism, the victims can be expected to scream. The public probably will become irate.
From all that appears, NSA has not used information obtained through its surveillance programs against Americans for reasons insufficiently related to fighting terrorism. But if it did, the political process provides a potential remedy, even if the Washington Post and others do not disclose the NSA’s secret programs.
But there is no remedy for the Post’s disclosure. Once it decides to tell the world about a given NSA surveillance technique, the NSA typically can no longer use that technique effectively. And the public cannot “unelect” the reporters, editors, and managers of the Washington Post.
All that remains for those who worry about protecting this country from terrorist attacks is to take what solace we can from Bart Gellman’s self-serving claim that he and his colleagues have “been as careful as we could be to balance the public interests in self-government and self-defense.” I take none.
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