Jacob G. Hornberger: Secrecy versus a free society

  A Texas company named Lavabit exemplifies everything that the national-security state has done to our nation. Lavabit is an Internet company that provides encrypted email service for its customers. It recently announced that it was voluntarily shutting down its business rather than capitulate to the demands of the NSA and its FISA Court to grant access to its customers’ communications.

  The details of this sordid episode are set forth in this article by Glenn Greenwald.

  Although Lavabit can’t explain exactly why it’s shutting down, which is incredible in itself, it’s obvious that the company got served with one of those secret FISA orders requiring it to give the NSA access to its customers’ communications. Such orders command the recipient to keep the existence of the order secret, even from its own customers.

  So, this is where the national-security state has brought America. We now live in a country where the government can secure secret court orders permitting officials to access everyone’s private communications. The people who are adversely affected are not even aware of it because the recipient of the order is prohibited from telling them. That means that the customers themselves never have an opportunity to object to the order because they’re never told of its existence.

  Thus, it’s a fairly perfect scam because ordinarily the company receiving the secret order has no real incentive to oppose the order. After all, it’s the customers’ records that are sought. So, most companies will simply comply with the order and also comply with the court’s order to keep it secret.

  Not so with Lavabit. Unlike so many other companies that receive such orders, such as those telecoms that illegally sold their customers down the river by complying with the government’s illegal demands for their customers’ records, Lavabit has decided to simply shut down operations rather than sell out its customers. Presumably that means shutting down a nice stream of income that sustains the company and its employees.

  Lavabit’s decision, needless to say, is heroic. But Lavabit isn’t going down without a fight. It filed a lawsuit in federal district court challenging the secret FISA court order that was served on it. Not surprisingly, given the deferential attitude that the federal courts have long shown to the national-security state, the court ruled against Lavabit.

  Don’t feel bad that you missed the court hearing on the case. It too was secret.

  Lavabit is now appealing the decision to the federal Court of Appeals. I wouldn’t plan to attend that hearing because undoubtedly it will be held in secret too. And if the Court of Appeals issues a written opinion in the case, that undoubtedly will be secret too. If the case ultimately reaches the U.S. Supreme Court, no doubt that all spectators will be barred from the proceedings as well. And when the Supreme Court issues its ruling and its opinions, no doubt that they will be kept secret too.

  When I attended law school at the University of Texas in the early 1970s, never in my wildest dreams did I ever think that there would be such things as secret search warrants issued in secret by secret courts in the United States or that our nation would be characterized by secret court proceedings, rulings, and opinions. We were taught that the whole idea of an openly transparent legal system, one whose proceedings were open to the public and whose legal opinions were published, was so that the general public could understand what the law was and the reasoning behind the law.

  Yet, here we have a system which involves a court operating in secret issuing secret search warrants—a court that is nothing more than a rubber stamp for the NSA. Recipients of such warrants are placed under immediate gag orders, prohibiting them from advising their customers or letting their fellow citizens know what is going on. And if a recipient files suit to challenge all this junk, the suit has to be kept secret, along with court hearings and even the final ruling in the case and the reasoning behind the ruling.

  How in the world can all this be reconciled with the principles of a free society? It can’t be. This type of thing is what characterizes dictatorial regimes. The term Star Chamber comes to mind. So do communist Cuba and Nazi Germany.

  But what’s important to keep in mind is how and why America has come to this. It’s all because of the apparatus known as the “national-security state” that was grafted onto our constitutional order without even the semblance of a constitutional amendment.

  And as everyone knows, things are only getting worse, with the national-security state’s now wielding the power to round up, incarcerate, torture, spy on, and even assassinate Americans without trial by jury and due process of law.

  That’s why I continue to emphasize that to restore a genuinely free society to our land, Americans must raise their vision to a much higher level than simply reforming the NSA. The only way to achieve a genuinely free society is by dismantling, not reforming, the entire Cold War-era national-security apparatus that has our nation, including the federal judiciary, in its grip and which is causing so much harm to our country.

  About the author: Jacob G. Hornberger is the founder and president of The Future of Freedom Foundation.

  This article was published by The Future of Freedom Foundation.