The Easy Way for the Government to Get Around Secrecy Rules Is to Change Them
A court redefines "relevant." The Department of Defense ships secret files on the bin Laden killing into the dark corners of the CIA. The NSA broadly interprets the Freedom of Information Act to keep its surveillance private. When secrecy rules make its job hard, the government figures it might as well change the rules.
Secrecy always exists in conflict with democracy, as we've noted before. Which is why we rely on the courts and laws around access to information to ensure that we're as informed as we can be — and that the executive branch has a check on its power when we can't. But as the secrets of the government's war on terror emerge, we're learning more and more about how the government changes and reinterprets those rules to keep its activity in the shadows.
Three tactics emerged over the weekend.
Rely on judicial redefinitions of common words.
The Wall Street Journal has details on how the Foreign Intelligence Surveillance Court (FISC) — the secret body that approves government requests for surveillance authority — decided that the sweeping collection of information about Americans' phone calls was allowable. It comes down to how one defines "relevant." And it also comes down to technology.
In 1991, the Supreme Court determined that evidence collection is "relevant" to an investigation if there was a "reasonable possibility" that it could produce important information, the Journal notes. That standard has generally been interpreted to exclude massive sweeps of information. Yes, knowing everything about everyone offers more than a reasonable chance of yielding information about crimes, but the cost, most courts have decided, is too great.