Friday, July 12, 2013

Too Secret for a Republic?

Back in June, I noted that one of the problems with renewing the Patriot Act and, supposedly, authorizing the NSA program is that there wasn't enough public information to intelligently debate the matter. I wrote:
Second, and more important, there was no true public debate because the capabilities and scope of Federal intelligence was not (and is still not) understood. You cannot have an intelligent discussion of surveillance if you do not know capabilities. Back in the days of simple pen-registers to capture the telephone numbers called from a single telephone, the capabilities were so limited that it did not seem unreasonable to allow the government to collect such information without warrants. Now, we learn, the NSA can and is vacuuming up detailed information on millions of people.
I'm not alone. Randy Barnett, providing a preview of an op-ed in the Wall Street Journal, writes:

In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants. For the people to control their servants, however, they must know what their servants are doing.
The secrecy of these programs makes it impossible to hold elected officials and appointed bureaucrats accountable. Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants’ conduct in office. Yet such judgment and control is impossible without the information that such secret programs conceal. Had it not been for recent leaks, the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.

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