SECRETS - December 23, 2010

When I took a course in Constitutional Law, the discussion spent some time on the Jeffersonian view that the First Amendment to the Constitution was a prevention against secretive government and was the basic guarantee of freedom in a democracy. In the period just after the American Revolution, all the empires of Europe subsisted on the secrets of the royal houses and their hereditary power centers, even the British, which was the least bad of the lot. To the extent possible, it spoke to a world in which there were no governmental secrets, so that the People could know what and whom they were actually voting for. Of course, there would always be secrets, but these would have to be limited to things held close to the vest by a few people, and not be the recognized legal property of the ruling forces. At the same time, the Fourth Amendment guaranteed the right of the People to be secure in their persons, papers, houses and effects. A corollary of this statement is that personal secrets could only be penetrated by officials when a legal order attested to specific knowledge recognized by due process requiring certain officers to penetrate the Amendment’s shield of private life. In today’s world, these two conflicting injunctions have been stood upon their heads. The government spies on the People, as by telephone taps, whenever it wants to, and the intrusion of individuals into knowledge labeled sacrosanct by the simple stamp of SECRET is promoted to a crime, even up to the constitutionally defined offense of treason. In Britain, the Thatcher government prosecuted Clive Pontyng for violation of the Official Secrets Act for revealing that Thatcher had lied to Parliament in the matter of the sinking of the Argentine battleship Belgrano during the Falklands War. A British judge was willing to direct a verdict of guilty, but that was too much even for Thatcher. The jury gave the judge a lesson in due process by acquitting the truth-teller. It is a lesson that the US public no longer cares about, if we ever did.