If a key U.S. intelligence agency enters into a deal with a major email and search-engine provider, and you request confirmation of this deal, the government doesn’t have to answer you one way or the other. So says a federal appeals court. And the court is correct.
Several years ago the media picked up rumors that Google had been targeted for cyber attacks by agents of the Chinese government seeking information on human-rights activists, and that the National Security Agency (NSA) entered into a top-secret deal with Google related to defending against further attacks.
The Electronic Privacy Information Center (EPIC) sought information regarding this deal, and filed a Freedom of Information Act (FOIA) request with the NSA, demanding answers. The NSA responded that this request fell within Exemption 3 of the FOIA law, which specifies certain types of questions the government doesn’t have to answer, and is also blocked by Section 6 of the National Security Agency Act of 1959, one of the original laws governing this super-spy agency. (President Harry Truman created the NSA in 1952 by executive order.)
So the NSA neither confirms nor denies that it has any arrangement with Google. Given how many Americans use Google—including its Gmail service—after the NSA refused to answer, EPIC filed a federal lawsuit in the U.S. District Court for the District of Columbia. When the district court sided with the Obama administration, EPIC appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
On May 11, a three-judge panel of the D.C. Circuit affirmed the district court, holding that federal law does not require the NSA to answer this FOIA request. The panel consisted of all conservative judges, and the unanimous decision was written by Judge Janice Rogers Brown—one of the most respected judges on the federal bench and widely talked up as a potential Supreme Court nominee for a Republican president.
The D.C. Circuit noted that the NSA’s filings detailed how answering the question could endanger national security and would impair the NSA’s ability to tackle any potential threats posed by the alleged cyber attacks.
This decision is correct. In our democratic republic, disclosure and transparency is the general rule. But there are exceptions. The world is a dangerous place, and the Constitution recognizes that where national security is concerned, our military and intelligence officers often need to keep certain things secret. While the political opponents of any administration may decry secrecy or allege shady deals, when guarding against foreign threats the Constitution allows the federal government to pass laws that often keep us in the dark. The only solution to safeguarding against that power being abused is for the voters to be careful in deciding whom to trust with such executive power, a four-year decision we’ll all make again on November 6.
Breitbart legal contributor Ken Klukowski is on faculty at Liberty University School of Law and a fellow with the American Civil Rights Union.