Obama's Cloak of Invisibility

How secrecy frustrates challenges to counterterrorism tactics

Back in 2007, when he was running for president, Barack Obama criticized George W. Bush's expansive vision of executive power, saying, "I reject the view that the president may do whatever he deems necessary to protect national security." The day after taking office in 2009, Obama declared that "my Administration is committed to creating an unprecedented level of openness in Government."

Those two positions went together, because secrecy requires power and power thrives in secrecy, as Obama himself has been demonstrating for the last four years. Three recent cases illustrate how breaking his promise of "the most transparent administration in history" has helped Obama break his promise not to use national security as an excuse to violate civil liberties.

After 9/11, Congress loosened restrictions on national security letters (NSLs), a kind of administrative subpoena, first authorized in 1986, that the FBI uses to demand information from phone companies, Internet service providers, and financial institutions. According to the Justice Department's inspector general, NSL "requests" skyrocketed from a total of 8,500 between 1986 and 2000 to more than 56,000 in 2004 alone.

The Obama administration has made liberal use of NSLs, which in 2010 allowed the FBI to peruse information about 14,212 American citizens and permanent residents—a new record—without bothering to get clearance from a judge. If you were one of those people, the odds are that you will never know, because NSLs are almost always accompanied by instructions that prohibit recipients from discussing them.

Last week a federal judge ruled that such gag orders, under which companies are not even allowed to confirm that they have received an NSL, violate the First Amendment. "The FBI has been given the unilateral power to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs," U.S. District Judge Susan Illston wrote. "As a result, the recipients are prevented from speaking about their receipt of NSLs and from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences."

Just as Americans do not know when the government uses secret subpoenas to look at their telephone, Internet, and financial records, they do not know when the government secretly listens to their conversations or reads their email exchanges with people in other countries. Thanks to legislation that Obama supported as a senator, the government can conduct such surveillance without a specific warrant as long as its official target is located outside the United States and the collection of foreign intelligence is "a significant purpose" of the snooping.

Do such loose rules pass muster under the Fourth Amendment? Since it's hard to prove you have been subjected to secret surveillance, we are unlikely to get an answer from the courts. Last month the Supreme Court, in response to a challenge by lawyers, journalists, and human rights activists who worry that the privacy of their international communications has been compromised, said they lacked standing to sue because "they have no actual knowledge of the Government's…targeting practices."

Secrecy frustrates challenges to counterterrorism tactics even in the case of Obama's most startling claim to executive power: the authority to kill people he identifies as members or allies of Al Qaeda. In January a federal judge ruled that the Freedom of Information Act does not require Obama to disclose the Justice Department memos that explain the legal rationale for this license to kill.

U.S. District Judge Colleen McMahon expressed frustration with this result, saying, "I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret." In his State of the Union address the following month, Obama promised to make his "targeting" of suspected terrorists "even more transparent." I'll disbelieve it when I don't see it.