Transparency cp shells

Net Benefit – Circumvention

Transparency key to preventing circumvention- public account ability checks deceit

Marc Rotenberg 2002 [Marc Rotenberg is an Executive Director, Electronic Privacy Information Center (EPIC), and Adjunct Professor, Georgetown University Law Center. Former Counsel, Senate Judiciary Committee (Senator Patrick Leahy). “Symposium: Modern Studies in Privacy Law PRIVACY AND SECRECY AFTER SEPTEMBER 11”June 2002. Minnesota Law Review. 86 Minn. L. Rev. 1115 JC ]

One of the consequences of the expanded secrecy is clearly that public accountability is diminished. This has consequences both large and small. In the context of electronic surveillance undertaken pursuant to the new powers created by the USA PATRIOT Act, it means that targets of government searches who might previously have been notified that they were subject to government surveillance will not be so told. n49 It  [*1126]  means that public reporting of the use of surveillance authority by federal investigators will be less detailed and less useful than reports on similar activities in the past. And on large open questions, like who was responsible for the dissemination of deadly anthrax spores in the nation's capital in mid-October, the government can continue to make representations about the status of the case with little opportunity for the public to probe the government's claims because information associated with the investigation remains secret.

Transparency solves circumvention- key to regulatory oversight and public trust

Lee 13 (Timothy, technology policy reporter for The Washington Post, “Why a more transparent NSA would be good for Barack Obama”, 7/3/13, http://www.washingtonpost.com/news/wonkblog/wp/2013/07/03/why-a-more-transparent-nsa-would-be-good-for-barack-obama/)

Debates over government transparency are usually framed as a contest between the executive branch and the rest of us. Transparency is supposed to help Congress, the courts and the public hold the president accountable. But history suggests that transparency is important for another reason: it helps the president himself keep control over his subordinates. In a 1975 Senate hearing, National Security Agency director Lew Allen admitted that the NSA "had never received the explicit approval of incumbent presidents or attorneys general" for its program of secretly reading Americans' international telegrams. In another Senate hearing that same year, a White House aide who had planned a controversial domestic surveillance plan in the Nixon administration, testified that the White House "didn't know half the things" intelligence agencies were doing that might be legally dubious. "If you have got a program going and you are perfectly happy with its results, why take the risk that it might be turned off if the president of the United States decides he does not want to do it," he asked. He also said that "interagency jealousies and rivalries" caused to agencies conceal the extent of their domestic surveillance activities. Agencies didn't want to alert their bureaucratic rivals that they were encroaching on their turf. Secrecy also makes it easier for executive branch officials to cut legal corners on otherwise legal programs. For example, the Patriot Act gave the Bush administration broad authority to issue National Security Letters, secret requests for information that don't require judicial oversight. But a 2007 Inspector General's report found more than 700 cases where FBI agents who didn't have the authority to issue NSLs had improperly obtained information by telling companies that "exigent circumstances" required that the information be turned over immediately, without even the minimal checks required by the NSL rules. In all of these cases, secrecy made lawbreaking more likely. If an NSA or FBI employee suspected the law was being broken, there was no easy way to blow the whistle. And with limited oversight, it was less likely that Congress or the courts to notice something was amiss. So the abuses festered for years. So far, the controversial surveillance programs revealed by Ed Snowden's leaks appear to have been conducted with the explicit approval of President Obama. And maybe that's because today's executive branch officials have a healthier regard for the rule of law than they had under presidents Kennedy, Johnson, Nixon and George W. Bush. But it's also possible that the NSA, FBI, and other agencies are engaged in lawbreaking that neither the Congress nor the president know about yet. Some abuses festered for two decades before being brought to light by Congressional investigations in the 1970s. We haven't had a comparable investigation of intelligence abuses under the last six presidents. And today's executive branch is even more obsessed with secrecy than it was during the Cold War. More transparency and oversight wouldn't just make it easier for the public to trust their government. It would also make it easier for President Obama himself to keep his own subordinates in line. By insisting on widespread secrecy and aggressively prosecuting whistleblowers, President Obama has cut himself off from valuable sources of information about what his subordinates are doing. More transparency and oversight would allow the press, the Congress, and the courts to act as the president's eyes and ears, alerting him to cases where his subordinates have gone beyond what the law allows.

Transparency needed for public accountability and checks and balances- prevents circumvention of legal restrictions

Kitrosser 06 (Heidi, Professor of law and University of Minnesota, ““Macro-Transparency” as Structural Directive: A Look at the NSA Surveillance Controversy“, 8/13/06, http://poseidon01.ssrn.com/delivery.php?ID=318115065115118113000071069002022087017069064045069066075088119069072004022123120018022103030104056120001022114081089005125055073026085009081001020016106107054082056000029002002066012020002114015092082091116068096071019111123114101024014105024&EXT=pdf)

The Constitution’s framers placed much faith in the people of this country to govern themselves. Yet they also understood the vast human capacity to abuse power. Their resulting constitutional design provided for multiple separated and overlapping powers so that “ambition [might] counteract ambition,”240 with abuses in one part of government likely to be caught by another part or exposed by the press. As James Madison wrote, “[a] dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions” through structural checks and balances.241 A requisite element of this protective structure is macro-transparency. Thus, while the executors of federal policies – namely the President and the executive branch – may be authorized or inherently empowered to conduct particular activities in secret, they remain subject to checking through transparent statutory directives and to congressional oversight that itself is governed by macrotransparent information control rules. This macro-transparency directive is dynamic in effect. Congressional oversight, for example, may reveal one secret that can lead to the stripping away of additional layers of secret activity. And illegal conduct may be revealed and may lead to judicial activities that are themselves revelatory in nature. The framers’ brilliant design can go a long way toward saving us from ourselves. A watchful press, for example, might shame a sleeping Congress into assessing executive corruption, which might in turn activate judicial processes and corrective, macrotransparent legislative measures. To some extent this is the story, as of late September 2006, of the post-9/11 NSA surveillance controversy. While a fearful public, press and Congress remained largely idle in the years after 9/11, The New York Times finally did reveal the NSA program’s existence after sitting on the story for over a year. And this sparked some measure of public and Congressional outrage in the months that followed, with some congressional hearings held, some legislative proposals offered and some judicial relief sought. But the story of the recent NSA surveillance controversy is also a story about our system’s ultimate reliance on the people. When all is said and done, the people simply must care enough about statutory and constitutional evasions for exposure to fuel and to sustain government’s checking mechanisms. It remains to be seen whether the people and their representatives will rise to this challenge with respect to the surveillance controversy. While some congressional hearings indeed have been held, others have been avoided or substantially curtailed. And in the hearings that have been held, witnesses’ claims to be not at liberty to answer particular inquiries often have prevailed without question. Furthermore, while responsive legislation has not been passed as of late September 2006, there is a substantial chance at this point that legislation largely authorizing the program as is will pass both houses of Congress.

Making NSA practices and legal interpretations transparent needed for courts to check circumvention

Franklin 13 (Sharon, Senior Policy Counsel of The Constitution Project, “NSA Surveillance Disclosures Show Need for Improved Privacy and Transparency”, 6/26/13, http://www.constitutionproject.org/documents/nsa-surveillance-disclosures-show-need-for-improved-privacy-and-transparency/)

Above and beyond the likely statutory and constitutional violations that the NSA disclosures have revealed, we must address the problem of “secret law.” It should not have taken a leak of classified information for the public to learn how the government has interpreted Section 215 of the Patriot Act. While it may be necessary to maintain secrecy for any evidence submitted to the secret Foreign Intelligence Surveillance Court to justify such surveillance, the administration’s interpretations of surveillance laws and the standards being applied by the court should be public. The Constitution Project has long called for disclosure of significant opinions of the FISC and other documents showing the administration’s interpretations of its authority under the surveillance laws. This will permit meaningful public debate and rigorous oversight of government actions. The need for transparency is particular great where the administration’s or the FISC’s interpretation of the law is not readily apparent from the text of the statute. The governing law and legal standards under which the administration operates should be public. Secret law has no place in a democracy.