'Lawful Illegality: What Snowden Has Taught Us About the Legal Infrastructure of the Surveillance State' by Lisa M. Austin
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The Snowden revelations have revealed to us, with impressive documentation, the technical infrastructure of contemporary state surveillance. What is less obvious, but of great importance, is the revelation of the legal infrastructure of this surveillance. We need to stop thinking that the issue is illegal activity on the part of our national security agencies and instead start from the proposition that our national security agencies do understand themselves to be acting within the law. The problem, I argue, is that this legal infrastructure is best understood as one of “lawful illegality.”
Unlike other discussions of the rule of law and terrorism, which have focused on the nature of emergencies and the perceived need to preserve executive discretion to respond to exceptional circumstances, I argue that state surveillance raises a very different rule of law question. Surveillance is a mode of rational social ordering and the question is whether it is in conflict with the deepest commitments of law as a mode of rational social ordering.
I claim that the issues of secrecy, complexity, and jurisdiction work together to create “lawful” paths for state surveillance for national security purposes that are nevertheless in deep tension with a general commitment that this surveillance be subject to the oversight and accountability demanded by the rule of law. Throughout, I illustrate these issues with a set of examples largely taken from the Snowden revelations, with a Canadian perspective. These examples are not meant to provide an exhaustive overview of the issues but to highlight the importance of attending to these larger questions of legality if we are going to move forward and design a better system of oversight.
'The Vengeful State: Responses by Democratic Governments to Unauthorized Public Disclosure of National Security Information' (RegNet Research Paper No. 2014/42) by Peter Grabosky
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Recent disclosures by Bradley (now Chelsea) Manning and Edward Snowden have rekindled interest in the tension between state secrecy and the public’s right to know. In authoritarian political systems this is a non-issue, as there is neither pretence on the part of the state, nor expectation on the part of its citizens, that national security information should become the subject of public debate. By contrast, the difficulties faced by liberal democracies are real. While hardly anyone would suggest that national security should be managed in an environment of complete transparency, there are many who suggest that citizens of a democracy are entitled to know about acts of questionable propriety that have been committed by their government on their behalf. And prospectively, it is important for citizens to be party to informed discussion about whether the policies that may lead to these acts are misguided or not. This chapter addresses responses of democratic states to the unauthorised public disclosure of national security information. It is not concerned with espionage, the clandestine provision of one state’s confidential information to another. The analysis is based on five prominent cases, each occurring in one of five liberal democracies: France, Britain, Switzerland, Israel and the United States. Each case will examine the disclosure in question, whether the information revealed was indicative of illegality on the part of the state, and the media through which they were disclosed. It will then discuss the mobilization of law by the aggrieved government, including whether the state violated the law in the course of its response. The concluding section of this chapter will look back at the original disclosures and will address two fundamental questions: Was the information appropriately classified in the first place? What harm to national security resulted from the various disclosures?
'National Security Leaks and Constitutional Duty' by Alexander J. Kasner in (2015) 67(1)
Stanford Law Review comments
Edward Snowden’s disclosure of national security information is the newest chapter in the United States’ long and complicated history with government leaks. Such disclosures can help to root out illegal and unconstitutional behavior that might otherwise evade scrutiny. And yet, unlike the press, government leakers are often assumed to have no claim to constitutional protections. National security leaks are treated as an opportunity to discuss the constitutionality of underlying government conduct or the balance of federal powers, but there is little reflection on the leaker who made the discussion possible.
This Note addresses that oversight by focusing our attention on the Constitution’s treatment of government officials who choose to leak. In so doing, it asks us to consider the duty of executive officers to affirmatively support the Constitution, itself required by the very text of the Article VI Oath Clause.
This Note presents one of the first concentrated studies of the Article VI Oath Clause, drawing upon its text, structure, and history to draw out the obligation it places on executive officers to resist unconstitutional government behavior. It also explains how recent developments in national security, secret keeping, and the doctrine of standing render the Article VI duty even more critical. At the same time, this Note departs from other literature by recognizing that unfettered disclosures of broad swaths of information are constitutionally indefensible. I contend that the Article VI duty should generally be limited to Article II executive officers, that it endorses some but not all affirmative disclosures, and that it anticipates constitutional interpretation as a shared enterprise between the judiciary and those officers. This Note concludes by discussing the implications of the duty, both suggesting potential legal and policy solutions and reflecting on our assumptions about constitutional interpretation and enforcement.
