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Information about national security is generated largely inside one branch — the executive. To preserve the constitutional separation of powers, Congress, the judiciary, and, ultimately, the American public need to catch up. In the United States, net spending in 2004 on research and development was more than $300 billion, the National Science Foundation estimated this spring. This knowledge economy extends to matters of national security. In 2005 the executive branch’s intelligence apparatus cost $44 billion. Decisions from deployment of U.S. troops into new theaters to tapping phones in Detroit depend on this secret knowledge economy. Yet it is regulated by no comprehensive legal framework. Rules for everything from classification procedures to covert actions are largely left to often classified executive order. Dramatic recent shifts in security policy, such as new collaborations with Egyptian and Syrian intelligence services to “outsource” coercive interrogation, are determined without legislative input and often in the face of legislative resistance. When Congress acts, it often wields its tools carelessly. Disclosure-forcing laws that would at least give Congress full access to needed information are poorly drafted. Reporting requirements for intelligence gathering under the 1950 National Security Act suffer from ambiguities that creative lawyering can easily exploit. Further, from Iran-Contra on, legislators have had few successes imposing substantive limits by the power of the purse. Federal courts also fall over themselves acquiescing to the executive’s security-related secrecy claims. In 1953 the Supreme Court created an evidentiary privilege for “state secrets” and sanctioned nondisclosure of an accident report in a tort action against the Air Force. In 2000 the daughter of one of the men killed in the accident discovered the same report online, now declassified. It revealed no secrets, only government negligence. This May a federal district court invoked the state-secrets privilege to dismiss a tort suit by a concededly innocent German citizen mistakenly kidnapped and tortured by the CIA. The opinion is remarkable because abundant public information on the case exists, so that the tort suit seemingly could be litigated largely without discovery of state secrets. Human liberty, not mere money damages, can hinge on governmental secrecy. In its Supreme Court brief for the case of alleged enemy combatant Yaser Hamdi, the Justice Department asserted that Hamdi was so dangerous he couldn’t even be allowed to talk to his lawyer. Losing in the high court, the government dealt swiftly with the dangerous Hamdi — by releasing him before any court could examine the factual charges against him. Legislative and judicial deference in the new secret knowledge economy fit uncomfortably with one mundane fact: Governments lie, all the time. They lie to make themselves look good. They lie because they’ve made mistakes and want to hush them up. They lie because it increases their power. Since the Cold War, administrations of both stripes have been well aware of the political valence of terror. Fear might eat the soul, but it also propels voters to the polls. Secrecy might well have justifications, but it also has considerable dangers. Citizens have an abiding interest in knowing that major investments of national security resources are accurately assigned. They have a powerful interest too in preserving constitutional rights (even if they are too often tempted to trade away the rights of others for a fleeting sense of security). And they have an overarching interest in judging politicians by their achievements, not by the fears they inspire. Congress and the courts are the people’s front-line agents against abuse of the secret knowledge economy. But we need a new legal architecture for managing national security knowledge to account for new dangers. This means legislating classification rules, mandatory disclosures rules, and new rules for legislative standing. It means limiting executive privilege claims, including the state-secrets privilege. It means, in sum, a comprehensive, new National Security Act that in fact regulates our national security apparatus. Beyond legislative change, a shift in the zeitgeist must happen. Taking the executive’s claims about national security at face value ill serves the nation. Deference ought not to mean blind acquiescence. It risks becoming a crutch for cowardice and fear of taking responsibility for tough decisions. When policy decisions can be meaningfully debated in Congress, and discrete infractions of individual rights fully reviewed by an independent judiciary, we are more likely to focus on real problems, rather than imaginary fears.
Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice at New York University School of Law.

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