“If you have nothing to hide, you have nothing to worry about.”
According to this line of reasoning, if you’ve done nothing wrong, you shouldn’t object to the government’s unfettered authority to track and analyze your movements, your communications, and your financial transactions.
On the surface, this argument might sound persuasive, but it’s wrong. For proof, we need to look no further than the US Constitution; in particular the Bill of Rights. The ten amendments making up the Bill of Rights can collectively be summarized as, “Keep the government off my back.”
Moreover, the premise of the “nothing to hide” statement is that the people collecting and analyzing this data have your best interests at heart. But there’s powerful evidence that they don’t.
For instance, how is it in your best interest that based on the surveillance authority in the PATRIOT Act, President George W. Bush built an enemies list of more than 10,000 people?
A better way to consider this argument, in our view, is to reverse it: to demand full disclosure of the laws, regulations, and legal justifications that supposedly authorize this all-pervasive surveillance. After all, if the government has nothing to hide, it has nothing to worry about in fully disclosing this information.
But Uncle Sam is much more protective when it comes to disclosing information about the surveillance state it’s erected. We have no objection to keeping the operational parameters of a weapons system secret. But we find it deeply troubling that Congress and the federal agencies it regulates conceal the very rules and laws under which they operate.
Since 9/11, the number of such “secret laws” has soared. They take the form of legal memoranda, agency rules, court opinions, and agreements with foreign governments. And since they’re designated as classified information, they’re unavailable to public scrutiny.
In 2016, a report from the Brennan Center revealed that the Justice Department had issued more than 70 secret legal opinions related to the “War on Terror” between 2002 and 2009. There’s even a secret court to review requests for intelligence-related search warrants: the Foreign Intelligence Surveillance Court (FISC). This court deliberates in secret and, in most cases, doesn’t publish its decisions.
But occasionally, we catch glimpses of what’s being hidden from us. In 2007, WikiLeaks released a secret manual written for prison guards at the military detention center in Guantánamo Bay, Cuba. At the time, hundreds of suspected terrorists were detained there without being accused of any crime. The manual instructed guards to “exploit the disorientation and disorganization felt by a newly arrived detainee.” The manual also revealed the rules for permissible types of torture to be used against detainees. Guards were even instructed to forbid visits by the Red Cross.
In many cases, we don’t even know what actions this network of secret law authorizes. But again, we sometimes learn bits and pieces. For instance, in 2017, in response to a lawsuit by the Electronic Frontier Foundation (EFF), the Justice Department released 18 heavily redacted FISC opinions.
One of the rulings was particularly Kafkaesque. An unnamed “service provider” – most likely a company like Google or Yahoo – received an order from the FISC demanding it hand over unspecified customer data. The service provider asked for the relevant law or regulation under which the information was sought. But the FISC ruled the service provider had no right to this information.
The centerpiece of this system of secret law is a court-invented doctrine called the “state secrets privilege.” It allows the government to block the release of information sought in a lawsuit or investigation that, if disclosed, would harm national security. Over the years, federal courts have invoked this doctrine to block requests for information relating to warrantless wiretaps, the CIA’s kidnapping of terror suspects, and the NSA’s mass interception of Americans’ internet communications. Indeed, only last March, the Supreme Court invoked the state secrets privilege in a case filed by a terrorist suspect detained at Guantánamo Bay for the past 19 years.
We often ask ourselves how the United States, the “land of the free, home of the brave,” evolved into a nation of secret laws. Certainly, there’s an element of apathy; most Americans are too busy in their everyday affairs to worry about their constitutional rights.
But we also think this apathy is underlaid with fear. President George W. Bush fed into this fear when he declared a few days after 9/11 that:
These terrorists kill not merely to end lives, but to disrupt and end a way of life.
In making this claim, Bush was merely channeling a much older realization that people are easily manipulated by fear. As Nazi leader Hermann Goering remarked at Nuremburg trials following World War 2:
The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.
Unfortunately, we don’t foresee this state of affairs ending anytime soon. Both major political parties support the state secret privilege. Meanwhile, the number of secret laws constantly expands.
Our only conclusion is that if you haven’t already done so, you might want to consider your Plan B.
