Posts Tagged ‘Secret State’

The secret state and congressional immunity

August 19, 2013

Democratic Senators Rob Wyden of Oregon and Mark Udall of Colorado say the National Security Agency is doing terrible things, but they can’t reveal what they are because the information is classified.

Whatever became of the Constitutional doctrine of “congressional immunity”?  Senators and Representatives have long held the right to speak freely on the floor of Congress without being held accountable to anyone except Congress itself.

Back in 1971, Democratic Senator Mike Gravel of Alaska read the secret Pentagon Papers into the public Congressional Record.   The Supreme Court ruled that he had a right to do so.

The relevant portion of the Constitution is in Article One, Section 6.

      The Senators and Representatives … shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Back in 2003, Congress de-funded the Total Information Awareness program, which was intended to collect and sift through all electronic communication.  But, as whistleblowers such as Edward Snowden and journalists such as James Bamford have revealed, the program never ended, but was continued under different names.

If an agency of the federal government can disregard the expressed wishes of Congress, and make it a crime to reveal what has been done, what becomes of the rule of law?  What limits can there be on governmental power?


The secret state and the Prisoner’s Dilemma

August 19, 2013

Ladar Levison, who closed down his Lavabit e-mail service rather than comply with a secret government order, is in the classic Prisoner’s Dilemma situation.

h-LAVABITHe and other business owners would be better off if they stuck together and resisted the government’s secret demands in the courts.  But because of the government’s gag orders, none of them has any way of knowing whether others are fighting the same battle or they are all alone.

Levison is forbidden to say just what the government ordered him to do and what his objection was.  His secret appeal against a secret order will be tried in secret.  This is crazy.   This is bizarre.  It is like some unpublished short story by Franz Kafka.

We have a huge national security apparatus which operates in secret.  The President of the United States issues secret orders for assassinations of people deemed national enemies, based on a secret legal ruling.  These operations are subject to review by a secret court.  We the people are supposed to be reassured by congressional committees which receive secret testimony they are not allowed to tell us about.

The philosopher Hannah Arendt, writing about the Nazi and Soviet regimes in The Origins of Totalitarianism, said that the aim of totalitarian governments was to destroy all institutions that stood between the individual and absolute power, so that any person who dared dissent felt helpless and alone.

We’re not in that situation in the United States—not yet.   But we do have a growing totalitarian mentality.  Washington is full of politicians and commentators who labels as a “narcissist”  anyone who defies authority in the name of conscience.

If the United States exists 30 years from now with liberty under law, it will be because of brave individuals such as Ladar Levison, who was willing to sacrifice a business he spent 10 years building up rather than sacrifice the liberties of his fellow citizens.