Secrecy Is Delegation of Power

With allegations (and denials) of economic espionage and reports of broad access to cell phone data joining last week’s blockbuster revelation that the National Security Agency has worked to undermine encryption, it’s hard to keep up.

But Julian had it right on the jaw-dropping encryption news in his post last week, “NSA’s War on Global Cybersecurity.” A national-security-aimed attack on encryption systems that protect all our communications and data—our financial transactions, privileged communications with attorneys, medical records, and more—is like publishing faulty medical research just to prevent a particular foreign dictator from being cured. It is penny-wise and pound-foolish. It had been looking to me for a while like the U.S. government may be hoarding vulnerabilities and cultivating new attacks rather than contributing to worldwide security by helping to close gaps in vulnerable technologies. And now we have the proof.

Shane Harris’s excellent Foreign Policy article today looks at NSA administrator General Keith Alexander, calling him “The Cowboy of the NSA.” Fast and loose with the law, his folksy demeanor has allowed him to downplay the significance of his efforts. Meanwhile, Alexander and his “mad scientist” advisor James Heath have done anything they want—and lobbied for it adroitly—awash in taxpayer money. Harris reports:

When he was running the Army’s Intelligence and Security Command, Alexander brought many of his future allies down to Fort Belvoir for a tour of his base of operations, a facility known as the Information Dominance Center. It had been designed by a Hollywood set designer to mimic the bridge of the starship Enterprise from Star Trek, complete with chrome panels, computer stations, a huge TV monitor on the forward wall, and doors that made a “whoosh” sound when they slid open and closed. Lawmakers and other important officials took turns sitting in a leather “captain’s chair” in the center of the room and watched as Alexander, a lover of science-fiction movies, showed off his data tools on the big screen.

And:

“He moved fairly fast and loose with money and spent a lot of it,” [a] retired officer says. “He doubled the size of the Information Dominance Center and then built another facility right next door to it. They didn’t need it. It’s just what Heath and Alexander wanted to do.” The Information Operations Center, as it was called, was underused and spent too much money, says the retired officer. “It’s a center in search of a customer.”

I find myself nonplussed by the glib reaction of some conservatives to this wanton bureaucratic behavior. Cracking the encryption systems that protect us all cannot be waved off as “the task we’ve given the NSA.” So I offer this framework for thinking about the NSA and its behavior: Secrecy is a delegation of power from elected officials to unaccountable bureaucrats.

This is not to deny that there is some need for secrecy sometimes, but, at the scope we’ve seen, secrecy has the same, and worse, effects as other delegations of power that conservatives and libertarians object to.

The classic wrongful delegation of power occurs when Congress declines to make decisions itself and instead punts issues to a large and largely unaccountable bureaucracy. Congress has done so time and again, in laws such as the Clean Air Act, shipping great swaths of authority over to the executive branch instead of confronting hard questions. Worst of all, delegation often permits the primary offenders—members of Congress—to win political credit for “reining in” agencies that they had empowered in the first place. It is well recognized that unaccountable bureaucrats take advantage of this authority to achieve ends well beyond what Congress wanted. My favorite article on this practice—still—is Professor Lars Noah’s 1997 article, “Administrative Arm-Twisting in the Shadow of Congressional Delegations of Authority.”

How, though, is secrecy a delegation of authority?

Secrecy has two principle effects. Obviously, it cuts the cords of oversight, making it more difficult for Congress and the people to see that agencies are doing their bidding. The claim that NSA programs are overseen by all three branches of government are fading quickly. We have learned, for example, that members of Congress have been denied key information about NSA spying. The panel of judges often referred to as a “court” does not deserve that name. Randy Barnett and I recently argued to the Supreme Court that the Foreign Intelligence Surveillance Act panel is “more accurately conceived of as an advisory body.” And President Obama recently said of revelations about NSA spying, “I mean, part of the problem here is we get these through the press and then I’ve got to go back and find out what’s going on.” This is not robust executive oversight.

The second effect of secrecy is to strictly wall off information about the problem Congress has asked executive branch agencies to fix. Anyone with enough diligence can examine how much of a problem air pollution is, but the secrecy thrown up around national security issues means that federal bureaucrats are the principle source of information about the threats they are tasked with securing against. It’s no surprise that they provide ominous but fact-free threat information, concealing anything that could produce doubts about their power and plans behind walls of secrecy. General Alexander claimed “dozens” of terror attacks disrupted by his agency’s efforts. Rare are the individuals in Congress and the press who have the wherewithal to challenge such statements.

Secrecy is an incredibly effective appeal to authority, used ever more widely in government to thwart oversight. It is part and parcel of Congress’s practice of abrogating its own authority in favor of a bloated, ever more powerful—and with these attacks on the reliability of American computing and communications systems—economically ruinous bureaucracy.