A government that is willing to violate its own laws to spy on its citizens is worrisome enough. But one that refuses to allow investigations into whether its actions have broken the law is even more dangerous. In a number of recent actions, the Bush administration has sought to shut down inquiries into whether the National Security Agency’s spy programs have violated civil-liberty protections. Such contempt for investigation is simply unacceptable in a society based on the rule of law.

Sarah Royce

When reports surfaced last December that the NSA had been listening in on the international phone calls of Americans without a warrant, the Justice Department tried to investigate whether the lawyers who had reviewed the program acted appropriately. The Office of Professional Responsibility, the Justice Department’s ethics office, sought security clearances in January to review the classified NSA program. Earlier this month, it found out that its investigators had been denied security clearance, a decision its director described as “hard to believe.” Without any way to access information, the office was forced to drop its investigation.

The secrecy surrounding the NSA program has suffocated other investigations. After USA Today reported that the NSA had obtained the phone records of tens of millions of Americans, members of Congress requested the Federal Communication Commission to investigate; the NSA’s program, after all, is ostensibly a violation of federal telecommunications laws. Yet the FCC announced last week it would not investigate the matter, citing the difficulty of obtaining information about the classified program. National security concerns may also ultimately lead to the dismissal of class-action lawsuits brought against phone companies alleging that they violated their customers’ privacy by cooperating with the NSA.

Indeed, the Bush administration has greatly increased the use of the so-called “state secrets privilege,” a legal mechanism to encourage the dismissal of cases that might reveal information critical to national security. It used the state secret privilege successfully this month to ensure the dismissal of a case brought by Khaled el-Masri, a German citizen who was apparently kidnapped in Macedonia by the Central Intelligence Agency through its “extraordinary rendition” program. El-Masri was held at a secret CIA prison in Afghanistan for five months before the government realized they had the wrong guy. This month, the administration again asserted the state secret privilege on behalf of AT&T, which is being sued over allegations that it has allowed the NSA to construct secret computer rooms at its facilities to spy on phone and internet traffic.

National security reasons do, in rare circumstances, have the right to prevent the prosecution of claims against it in open court. Yet a drive for secrecy cannot legitimize a wholesale refusal to allow investigations. The state secrets privilege was used about 55 times through the entire Cold War up until 2001. In the first four years since Sept. 11, the Bush administration has used it at least 23 times. And the fear that state secrets would be revealed in open court, of course, has no bearing on the refusal to grant security clearances to DOJ and FCC investigators.

There are ample means – from internal investigations and closed sessions of the Congressional intelligence committees to secret intelligence courts – to balance a legitimate need for secrecy with the absolute requirement that a nation governed by laws allow investigations when laws may have been broken. This administration, however, is far too fond of secrecy, and far too ready to stifle investigations.

In the past, claims of “national security” were used to justify gross abuses by intelligence agencies such as opening mail of private citizens and members of Congress, and even CIA tests of drugs such as LSD on unsuspecting citizens. These agencies were only able to act with such disregard for the rights of those they were sworn to protect because of an abiding and pervasive lack of will to oversee anything said to concern national security. As people who value freedom, Americans shouldn’t stand for a government that will shut down any investigation into the excesses of its national security apparatus.

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