His creation, the “Panopticon,” was a circular prison design featuring a guard tower in the center with tinted windows that allowed guards to observe without inmates knowing whether they were being watched.
In the aftermath of 9/11, President George W. Bush signed the Patriot Act into law, expanding the government’s power of surveillance within the Foreign Intelligence Surveillance Act of 1978. Portions of these laws and their interpretations are classified.
Julian Sanchez, a research fellow at the libertarian think tank Cato Institute believes the government, through those laws, has created it’s own Pantopticon.
“Coercive power is not just about actually having information recorded and disclosed,” Sanchez said. “It’s about the effect of knowing that you always could be.”
In a 2011 Pew Research Center poll on the Patriot Act, 42 percent of Americans believed the law is “a necessary tool that helps the government find terrorists,” while 34 percent agreed with the statement that “it goes too far and threatens civil liberties.”
Sanchez, however, said the 23 percent of poll respondents who said they “don’t know” is the most telling statistic in the poll.
“[Are] we are comfortable with the government obtaining information without a court order?” Sanchez said. “I think intuitively you go, ‘No,’ but I don’t know how much people care.”
Spreading the word
In 1991 the Federation of American Scientists received a leak revealing a secret Pentagon program to develop a nuclear-powered rocket.
On April 3 of that year, The New York Times ran an article with the headline “Secret Nuclear-Powered Rocket Being Developed for ‘Star Wars’.”
Steven Aftergood, a member of the federation and the main source for the article, said he couldn’t understand why the program was secret.
“We were more interested in the fact that the very existence of the program was considered secret,” he said. “That launched an inquiry into the rules and operation of what turned out to be a very large system for keeping secrets.”
Aftergood created an email newsletter to report on the government’s use of secrecy and what it means for the general public. Today, he runs a blog called “Secrecy News,” in conjunction with the Federation of American Scientists.
“What the blog tries to do is to make the structure of the secrecy system explicit and to cast the spotlight on government secrecy,” he said.
Aftergood said he doesn’t think all secrecy is “evil,” but the government needs to find the balance between national security and civil liberties. “I think one of the effects of secrecy is to dull public perceptions and suppress public debate,” he said.
Concern from the inside
Several lawmakers and outside organizations have tried to enact legislation to reduce government secrecy and secret law.
In 2008 the Senate Judiciary Committee held a hearing on secret law; Aftergood was among those who testified.
In his testimony, then-Sen. Russ Feingold D-Wis., called secret law “increasingly prevalent” and “particularly sinister.”
“It is a basic tenant of democracy that the people have the right to know the law,” Feingold said. “When it comes to law that governs the executive branch’s actions, congress, the courts and the public have the right and the need to know what law is in effect.”
In contrast to Feingold, Justice Department official John Elwood said he wanted to dispel the notion that the executive branch uses secret law.
Elwood, representing the department’s Office of Legal Counsel, said Justice “recognizes the value of openness in government,” but he said sometimes the legal advice that his department provides needs to be classified.
In early 2011, Sens. Mark Udall, D-Colo., and Ron Wyden, D-Ore., tried to amend portions of the Patriot Act that are classified.
“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden said in an article in Wired. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”
Wyden and Udall’s amendments were voted down and President Barack Obama signed an extension to the Patriot Act on May 26, 2011.
Aftergood said he is worried about the concern coming from those who have seen the secret information.
“[Wyden] is in the unique position of criticizing from a position of knowledge,” he said. “I’m concerned when I see that lawful senators like Ron Wyden say repeatedly that if the public knew what authorities can do, they would be shocked.”
The architecture of secrecy
In a paper for the Cato Institute, Sanchez acknowledged the need for some government secrecy. He said intelligence operations “must remain secret.”
Sanchez said his concern however is the government’s attempt to build an “architecture” of secrecy.
“I think privacy in a number of ways is a lot like free speech,” Sanchez said. “[There are] probably a really small number of people in practice that are saying something we would want banned. I think all of us would be worse off if those people were not able to participate in public discourse.”
Sanchez said that putting a large number of people under surveillance to catch a few promotes “structural harm.”
In 2010, the government issued 14,000 National Security Letters, which allow the FBI to obtain information about a suspect without a court order.
“Is it possible that there are 14,000 terrorists in the U.S.?” Sanchez said. “I’m not dead, so no.”
“It’s important to think architecturally about privacy and the fourth amendment,” he said. “People can’t make the tradeoff and decide that their representatives are striking the balance between civil liberties and national security if they don’t actually know what that balance looks like in the abstract.”