The impulse to secrecy is now the dominant trait of federal government. Public access to information is disappearing faster than the Amazon rain forest, and a recent case is an important example of how this impulse distorts and undermines crucial institutional accountability and the U.S. legal system. The Freedom of Information Act meant to put knowledge in the hands of the people so they could make intelligent decisions about public policy and subject the government to the cleansing effects of public scrutiny. Over the decades, courts have pared down the reach of FOIA by upholding agency refusals to disclose information that are questionable and sometimes transparently motivated by desires to avoid embarrassment, public scrutiny, or revelation of criminal acts perpetrated by the government.
Courts will even accept no response as an acceptable response under FOIA in a rather strange device known as a Glomar Response. Built by Howard Hughes under the guise of a private vessel designed to mine manganese nodules from the ocean floor, the Glomar Explorer was actually designed and built in the early 1970s to recover nuclear weapons and other material from a sunken Soviet submarine. A FOIA request for information concerning the relationship between the CIA and the Glomar Explorer was met with rejection and an explanation that,
“the fact of the existence or non-existence of the records . . . request[ed] would relate to information pertaining to intelligence sources and methods which the Director of Central Intelligence has the responsibility to protect from unauthorized disclosure.”
The Glomar Response was designed to permit the CIA to remain silent in the face of requests for information when the very fact of possession or lack of possession of the requested documents would compromise national security. Although the government abandoned its position in the original case, Glomar responses are now routinely accepted by the courts. As one all-star appellate panel claimed in justifying judicial timidity,
“When a pattern of responses itself reveals classified information, the only way to keep secrets is to maintain silence uniformly. And this is what the CIA has done.”
With complete predictability, a myriad of federal agencies seized on the doctrine. Since the mid-1990s, the NSA, FBI, Department of Justice, U.S. Marshall’s Service, Department of State, and even the U.S. Customs Service, have used the Glomar Response. But nowhere in FOIA are agencies given the right to not respond to requests for information; the courts supplied them with that benefit by creating it as a judge-made rule. Self-emasculation has become a high art by the federal judiciary in national security cases. Obviously, such a tool as Glomar is very useful to federal agencies to avoid scrutiny and blanket requests with the pall of national security – whether or not a real national security concern underlies any particular matter.
When attorneys representing detainees at Guantanamo Bay began to suspect that their communications with clients and others concerning their cases were being intercepted by the National Security Agency under President Bush’s now-infamous Terrorist Surveillance Program, they filed FOIA requests to confirm or allay their suspicions. The NSA and the Department of Justice issued a Glomar Response, refusing to acknowledge the existence or non-existence of documents relevant to the request. The detainee attorneys sued to force the government to either hand over information or assert reasons for non-disclosure.
Of course, the hook is that if the NSA simply refused disclosure based on exemptions under FOIA it would be a de facto admission that they do have responsive documents. If they have such documents, then, obviously, the NSA would be admitting via the backdoor that it did subject detainee attorneys to surveillance – illegal surveillance. On December 30, 2009, in Wilner v. NSA, the federal Second Circuit court of appeals upheld a lower court decision dismissing the case. The court found that the Glomar doctrine applied and that bare assertions via affidavit by NSA and DOJ were sufficient support for the Glomar Response – the court need do no more than take the agencies’ word that they are justified in using Glomar. The court also artfully dodged the issue of whether or not the government could rely on Glomar to hide illegal acts under the TSP, noting only that the illegality of the TSP was beyond the scope of its purview in the present case.
Perhaps I’m overly picky, but let’s look at some of the problems Glomar can cause that are exemplified by this case. First, what would the effect be on our system of justice if the government can subject legal counsel to surveillance to gain information that could then be used to help prosecutors prepare their cases? Attorney-client privilege is arguably the most hallowed protected relationship in our society – perhaps beating out even the priest-penitent and marital relationship privileges. Think of the advantages – and bewildering Orwellian power – that the government would have, for example, if it knew the intimate details of communication between the accused and their counsel or the evidence, communications and strategy of the plaintiff in a suit by a whistleblower against the government. The legal deck is already stacked in favor of the government even without access to information gleaned through surveillance. Forget everything else for the moment and let’s just consider if such an arrangement is remotely “American” in the sense of being consonant with our history and values. Secrecy is taking apart our public cultural heritage.
Second, the Terrorist Surveillance Program was/is unconstitutional, and what the courts in Wilner v. NSA and other cases are saying is that the government may employ the Glomar Response to hide details of or the existence of criminal acts. In many respects federal intelligence and law enforcement agencies now operate outside of the reach of law. Whenever the talismanic term “national security” is uttered it immunizes the government from accountability. The decision in Wilner v. NSA is one more case that sanctions government secrecy designed in part or in whole to prevent accountability for wrongful acts. In almost any case involving law enforcement and intelligence matters the government can produce a sufficient web of concern based on “national security” that will disarm the courts, which are already disposed and acculturated to be afraid of such cases. Looked at individually, most “national security” cases appear to be decided within the lines of reasonable and established legal principles. But courts seem unaware of the edifice of protection, secrecy, escape from accountability, tools of abuse, and encouragement of criminal acts that their aggregated decisions create for agencies. If each case were a brick, intelligence agencies would be living in Windsor Castle.
As for FOIA, much has changed since the heady days when transparency of government seemed to be a possibility. And Wilner v. NSA is a recent reminder of how far away government really is from the people and the law. A notable member of Congress, in impassioned support of FOIA argued that
“disclosure of Government information is particularly important today because Government is becoming involved in more and more aspects of every citizen's personal and business life, and so the access to information about how Government is exercising its trust becomes increasingly important. The growing complexity of Government . . . makes it extremely difficult for a citizen to become and remain knowledgeable enough to exercise his responsibilities as a citizen; without government secrecy it is difficult, with Government secrecy it is impossible.”
The impassioned supporter? Donald Rumsfeld in 1966.
*The opinions expressed here are those of William Weaver only and are not reflective of any official position of the University of Texas at El Paso.
Bill Weaver served in U.S. Army signals intelligence for eight years in Berlin and Augsburg, Germany in the late 1970s and 1980s. He subsequently received his law degree and Ph.D. in politics from the University of Virginia, where he was on the editorial board of the Virginia Law Review. He is presently Professor and Director of the Center for Law and Border Studies at the University of Texas at El Paso. He specializes in executive branch secrecy policy, governmental abuse, and law and bureaucracy. His articles have appeared in American Political Science Review, Political Science Quarterly, Virginia Law Review, Journal of Business Ethics, Organization and other journals. He has co-authored several books on law and political theory. His most recent book, co-authored with Robert Pallitto, is Presidential Secrecy and the Law (Johns Hopkins University Press, 2007).