'Macro-Transparency' as Structural Directive: A Look at the NSA Surveillance Controversy

Abstract:     
This article was prepared for the Minnesota Law Review's fall 2006 symposium. The article does two main things: (1) It considers the relationship between constitutional structure and government information control and (2) It uses the recent NSA surveillance controversy to exemplify its constitutional analysis. The core constitutional argument is as follows: Much of the Constitution, including provisions about political branch structure, is about facilitating inter-branch transparency and transparency between the branches and the people. At the same time, the Constitution leaves some room for government secrecy. Constitutional structure gives us a way to reconcile these two characteristics: any government secrecy must be subject to some avenue for political checking and alteration. The major means of this reconciliation is for the executive branch to have the capacity to execute secret operations, subject to legislative checking. Secret Presidential activities that not only are kept from Congress but that run counter to publicly promulgated legislative directives run afoul of this Constitutional framework. With respect to the NSA surveillance controversy, the article explains that the FISA statute and its history exemplify how the described Constitutional framework should operate. The Bush Administration's secret circumvention of FISA, on the other hand, exemplifies a dangerous breakdown in this framework.

Accepted Paper Series