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America Faces the Future

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America Faces the Future secrecyblue 5/5/09 3:13 PM Page 1 SECRECY AND GOVERNMENT / PRIVACY IN THE AGE OF NATIONAL SECURITY INTHE AGE OF NATIONAL SECRECY AND GOVERNMENT / PRIVACY THE CENTER ON LAW AND SECURITY AT THE NYU SCHOOL OF LAW SECRECY AND GOVERNMENT: America Faces the Future PRIVACY IN THE AGE OF NATIONAL SECURITY SecrecyPrivacy 5/5/09 3:15 PM Page 1 THE CENTER ON LAW AND SECURITY AT THE NYU SCHOOL OF LAW SECRECY AND GOVERNMENT: America Faces the Future PRIVACY IN THE AGE OF NATIONAL SECURITY Editor in Chief: Karen J. Greenberg Editor: Jeff Grossman Copy Editor: Sybil Perez Research: Joe Ortega, Summer Walker Index: Jim Diggins Design: Wendy Bedenbaugh copyright © 2009 by the Center on Law and Security cover photo: photo©istockphoto.com/Duncan Walker The opinions of the speakers herein do not represent the opinions of the Center on Law and Security. SecrecyPrivacy 5/5/09 3:15 PM Page 3 The dual concepts of secrecy and privacy were the subject of much scrutiny under the Bush administration. In two separate conferences held in 2007 at the Center on Law and Security, participants discussed the administration’s stance regarding these intertwined ideas. As Barton Gellman described, “national security presents a conflict of core values in our society between self-government and self- defense.” Covering a broad spectrum of issues and perspectives, the conversa- tions at the conferences highlighted questions about the nature of power in the context of national security, the consequences of government secrecy, and invasions into the private realm of U.S. citizens. At both events, panelists set out the facts of what occurred in the name of national security during the war on terror. In the matter of secrecy, government officials expanded their right to keep information out of the public eye, thereby increasing their authority. “When we allow information to concentrate or to accumulate in the executive branch, or anywhere,” Jameel Jaffer said, “we are allowing power to concentrate there as well.” The number of classified documents grew exponentially. Relying upon the states secrets privilege, the government persuaded courts to dismiss cases in which individuals claim to have been tortured – in the case of Khaled el-Masri, apparently due to mistaken identity. The torture policy and the CIA ghost prisons were kept secret not only from the public but also from many officials in Washington. In the matter of privacy, our panelists told us the reverse circumstance occurred. While secrecy mounted, privacy was eroded. The customary government respect for the privacy of its citizens diminished notably, according to our experts who cited the use of national security letters to collect information about individuals on an exponentially greater scale. We also discovered that our ability to retain our privacy amidst rapid technological expansion has been reduced to nearly nil, and that a thriving commerce exists relative to personal information. In some areas, discussion turned to the places where privacy and secrecy overlap, thus high- lighting their mirror relationship to one another. This was particularly apparent in the matter of warrantless wiretapping. Although we still, in the early months of the Obama administration, do not know the full extent of the covert warrantless wiretapping program, the government appears to have monitored a number of citizens’ conversations in defiance of previously accepted legal, not to mention ethical, standards. In some instances, the analyses of the individual right to privacy and the governmental right to secrecy varied considerably. As Jeff Jonas noted in regard to the commercial use of personal information, but which is equally true of the broader discussion, “the policy debate comes down to who gets to peek at the data, when, and with what oversight and accountability?” Yet the overall consensus of participants at both conferences was that government augments its power by keeping information secret, even between various government agencies. At the same time, individuals and society collectively lose a cherished right when privacy is removed or even compromised. As Professor Burt Neuborne said, “the feeling that we are being watched, whether or not we actually are, creates a deterrence on non-conventional behavior for which our culture will eventually pay a price.” Today, the ideas at the heart of these two conferences remain vital and instructive about the questions underlying the way forward as the country accepts the mission of protecting both civil liberties and national security. Karen J. Greenberg, Executive Director SecrecyPrivacy 5/5/09 3:15 PM Page 5 Table of Contents SECRECY AND GOVERNMENT: America Faces the Future Participant Biographies 8 On Secrets and Secrecy 14 Gaining Perspective: Secrecy Then and Now 18 Panelists: Scott Horton, Col. W. Patrick Lang, Walter Pincus, Michael Sheehan Moderator: Prof. Noah Feldman Secrecy and Decision-Making 30 Panelists: Barton Gellman, Prof. Jack Goldsmith, Prof. Stephen Holmes Moderator: Prof. Richard Pildes The War on Terror and the Courts 44 Panelists: Elaine Cassel, Joshua Dratel, Anthony Lewis, Adam Liptak Moderator: Prof. Burt Neuborne National Security and Intelligence 58 Panelists: Frank Anderson, Jameel Jaffer, Judge Kenneth Karas,* Prof. Stephen Schulhofer Moderator: Dana Priest Afterword by Prof. Norman Dorsen 65 PRIVACY IN THE AGE OF NATIONAL SECURITY Participant Biographies 70 Privacy: Then and Now 74 Panelists: Valerie Caproni, Robert O’Harrow, Jr., Prof. Geoffrey Stone Moderator: Prof. Burt Neuborne Citizens, Surveilled: FISA, the Patriot Act and Today’s Telecommunications 88 Panelists: Bryan Cunningham, Barton Gellman, Prof. Stephen Schulhofer Moderator: Prof. Matthew Waxman Reins of Power: From Wall Street to Washington, D.C. and the Global Information Network 100 Panelists: Jeff Jonas, Vivian Maese, Declan McCullagh Moderator: Karen J. Greenberg Public,, Private and Political Dangers 110 Panelists: Prof. Todd Gitlin, Lawrence Wright Moderator: Prof. Stephen Holmes Index 119 About the Center on Law and Security 126 *Judge Karas’s remarks were off the record. SecrecyPrivacy 5/5/09 3:15 PM Page 7 SECRECY AND GOVERNMENT: America Faces the Future APRIL 12, 2007 SecrecyPrivacy 5/5/09 3:15 PM Page 8 Secrecy and Government: Participant Biographies; April 12, 2007 Frank Anderson has been a consultant on involved the August 1998 bombings of the Middle East affairs to American and interna- United States embassies in Kenya and Tanzania. tional businesses and to the U.S. and foreign He was also lead and civilian counsel for David governments since 1995. This follows a 27-year Hicks, an Australian detained at Guantanamo career in CIA, where his last assignment was as Bay, Cuba, in Mr. Hicks’s prosecution by U.S. Chief of the Near East and South Asia Division. military commission, and currently represents His other assignments included service as direc- Mohamed El-Mezain, a defendant in the federal tor of technical services, chief of the Afghan prosecution of the Holy Land Foundation for Task Force and 13 years in the field, where he Relief and Development, and, on appeal, Lynne served as the CIA’s chief of station in three Stewart, a New York lawyer convicted of mate- Middle Eastern countries. rial support for terrorism. He is co-editor with Karen J. Greenberg of The Torture Papers: The Elaine Cassel practices law in Virginia and the Road to Abu Ghraib (Cambridge University District of Columbia, where she also teaches Press, 2005), a compendium of government law and psychology. She is the author of a col- memoranda. lege textbook on criminal psychology. Her book The War on Civil Liberties, published in Noah Feldman is the Cecilia Goetz Professor 2003, is an account of the early days of the of Law at the New York University School of Bush administration’s “war on terror” and its Law and an adjunct senior fellow at the Council impact on American citizens and the courts. on Foreign Relations. He specializes in constitu- Since 9/11, she has written and spoken about tional studies, with particular emphasis on the prosecution of terrorism cases in the Eastern relationship between law and religion, constitu- District of Virginia and the Fourth Circuit tional design, and the history of legal theory. In Court of Appeals. She has appeared in several 2003, he served as senior constitutional advisor documentaries, is a commentator on radio pro- to the Coalition Provisional Authority in Iraq grams in the U.S. and abroad, and has pub- and subsequently advised members of the Iraqi lished articles in several foreign newspapers, Governing Council on the drafting of the including publications in Poland and Finland. Transitional Administrative Law, or interim She is a regular guest columnist for constitution. He is the author of three books: FindLaw’s Writ. Divided By God: America’s Church-State Problem and What We Should Do About It Joshua L. Dratel is an attorney in New York (Farrar, Straus and Giroux, 2005); What We City. Dratel, a past president of the New York Owe Iraq: War and the Ethics of Nation State Association of Criminal Defense Lawyers Building (Princeton University Press, 2004); and member of the Board of Directors of the and After Jihad: America and the Struggle for National Association of Criminal Defense Islamic Democracy (Farrar, Straus and Giroux, Lawyers, has been defense counsel in several 2003). Feldman litigates constitutional cases terrorism and national security prosecutions, before the federal courts; lectures on law, reli- including those of Sami Omar Al-Hussayen, gion, and the Middle East; and is a contributing who was acquitted in federal court in Idaho in writer for The New York Times Magazine. 2004, and Wadih El-Hage, a defendant in United States v. Usama bin Laden, which 8 SECRECY AND GOVERNMENT: America Faces the Future SecrecyPrivacy 5/5/09 3:15 PM Page 9 Barton Gellman is a special projects reporter rity, terrorism, and torture and has authored on the national staff of The Washington Post, numerous articles on the United States and following tours as diplomatic correspondent, Europe during World War II.
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