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The Secrets They Keep--A Commentary by Prof. Bruce Ackerman

(This essay originally appeared on Slate.com on December 20, 2005.)

The Secrets They Keep
By Bruce Ackerman

The most curious aspect of the burgeoning National Security Agency spying scandal is President Bush's outrage at our discovering it. But it is his secrecy, even more than his extreme claims for presidential power, that should generate our most serious concerns.

Suppose the president's legal position on the spying question were correct and that he actually had the unilateral powers his lawyers say he has. Then it would be especially important for him to exercise this authority publicly and tell us when he was creating a new spying operation. Under this scenario, the only power Americans would have left against presidential abuse is precisely the power to mobilize and insist that Congress rein the president in. By keeping his decisions a secret, the president insulates himself from the last check and balance against excess. This should have no place in a constitutional democracy.

The president asserts, however, that such secrecy was required by national security. His claim is based on a simple confusion between creating the spying program and implementing it: Once the NSA begins spying on particular Americans, leaks about the details might well endanger national security. But this point is irrelevant with respect to this key question: Why didn't he let us know he was creating the new spying initiative in the first place?

The answer is obvious: A public assertion of presidential authority to spy on U.S. citizens at home would have generated a firestorm of criticism. The legal warrant for the president's actions is, to put it charitably, extremely vulnerable. Congress has explicitly required the security services to seek a warrant from a special federal court supervising intelligence operations. The administration, of course, was always free to ask Congress to revise this statute. But as Attorney General Alberto Gonzales remarked in his recent news conference, the administration didn't think it could gain legislative approval for its proposed changes.

Nevertheless, Gonzales blandly asserted that the vague resolution passed by Congress in the aftermath of Sept. 11 could trump the very specific guarantees against spying provided by Congress after great deliberation. And if this rationale wasn't sufficient, all the attorney general could offer was the "inherent" power of the commander in chief to make war on terrorism, even in violation of express congressional commands.

There is nothing new here. These are the same arguments invoked by the same lawyers following the disclosure of the now-notorious torture memos. It was only when these memos were leaked that the public outcry led the president to withdraw his extreme assertions. The president's initial response to the spying scandal makes it plain that he hasn't learned much from his earlier experience. To the contrary, he has systematically rewarded the lawyers who have given him such bad legal advice in the first place. Consider the case of Jay Bybee, the assistant attorney general who signed off on the torture memos at a time when he had already been nominated for a prestigious appellate judgeship. The memos, however, were still executive secrets when he appeared before the Senate judiciary committee for confirmation, and Bybee simply stonewalled when asked about his role on national security matters. He testified: "As an attorney at the Department of Justice, I am obliged to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice." Nevertheless, the Senate gave him a pass, and Bybee is now sitting on the 9th Circuit Court of Appeals.

The moral of this story couldn't be clearer. Executive secrecy invariably rewards the team player, who gives the security services what they want, over the legalistic "obstructionist," who tells them frankly that the Congress limits their freedom of action. And make no mistake about it, there are many, many ambitious lawyers around Washington who are quick to draw the obvious lesson from the Bybee story: Play with the team and become a leading federal judge.

Secrecy creates perverse incentives for the very lawyers upon whom the president relies for candid legal advice. And yet we are asked to trust them as they devise secret new security regimes behind the backs of the American people. It is not enough merely to end NSA spying on Americans. It is time to put an end to secret initiatives, rationalized in secret, and justified in the name of national security.

Bruce Ackerman is a professor of law and political science at Yale University. His latest book, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, will be published in the spring.