In recent weeks, a series of disclosures has raised important issues about how the Obama administration deals with the inherent tension between government secrecy and government accountability. Revelations about the government's secret investigation of the phone records of the Associated Press and of Fox News reporter James Rosen, its secret access to private phone records held by Verizon, and its secret PRISM initiative that gives the government access to the records of international Internet providers all raise fundamental questions about government transparency and the state of American democracy.
These disclosures pose at least three central issues: (1) Is the government's action unconstitutional or otherwise illegal? (2) Is the government's action, even if constitutional and lawful, nonetheless bad public policy? (3) Is the government's decision to keep such actions secret legitimate in a free and self-governing society?
With respect to the first question, my tentative conclusion, based on the facts that have been made public, is that these government actions are neither unconstitutional nor otherwise unlawful under existing law. Although I would personally like the see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion, it seems reasonably clear to me that these actions, though controversial, do not in any obvious way violate current law.
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