Secrecy and National-Security Investigations

Abstract

SECRECY AND NATIONAL-SECURITY INVESTIGATIONS analyzes, and recommends improvements to, the secrecy requirements that apply when the Executive Branch conducts counterterrorism and espionage investigations. It begins by surveying the interests implicated by government secrecy, including the Executive Branch's need to mount effective national-security investigations; the respective interests of investigative targets and third-party witnesses in privacy and free speech; and the interests of the public and Congress in overseeing the Executive and participating in democratic deliberations. The article also formulates a taxonomy of secrecy rules; it identifies five issues that must be addressed when building a secrecy regime from the ground up - e.g., Should secrecy be imposed automatically or only upon a special showing by the government? How long should secrecy persist? - and arranges the possible policy choices on a set of intersecting axes. After describing the operation of the existing secrecy system, the article proposes four reforms that would ensure a tighter fit between the requirements of secrecy law and the underlying values they implicate. First, current law only forbids third parties from revealing that the government is conducting an investigation; a mechanism should exist to restrict, in exceptional cases, disclosure of the underlying data the government seeks to collect. Second, the relatively weak secrecy rules associated with certain real-time surveillance techniques (such as wiretapping) should be strengthened, to reflect the danger that a target's awareness of real-time monitoring will prevent the information sought from being created at all. Third, the current system generally imposes secrecy automatically; these requirements should be replaced with rules under which the government must demonstrate the need for secrecy on a case-by-case basis. And fourth, the perpetual secrecy rules that characterize the existing regime should be amended to permit the elimination of secrecy when no longer justified.

Keywords: secrecy, national security, FISA, Foreign Intelligence Surveillance Act, NSL, National Security Letter, USA PATRIOT Act, Patriot Act