CIA and patriotism

[D'Amato Anthony]

At 03:49 PM 4/10/01 -0400, Mike Levin wrote:

>Tony;
>
>I'm old enough to know that I shouldn't argue a legal point with a lawyer,
>particularly a professor of law, but I'm not wise enough to avoid expressing
>strong disagreement.
>The entire history of deliberations leading to the Constitution, starting
>with the Articles of Confederation of the Continental Congress which
>recognized the need for secrecy in certain matters, including John Jay's
>dissertation on "secrecy and despatch" in Federalist 64, George Washington's
>references to the need for "contingency funds" and the importance of
>"secrecy", all resulted in a Constitution that authorizes the Congress to
>legislate secrecy as well as secret funds.

I think this history that you cite argues in the opposite direction from
your thesis.  The Framers, well aware of this history, vetoed it by
adopting a Constitution that creates a transparent government.

>This they have done repeatedly.
>See,for example, 50 U.S.C.A. 403(j), 1949 which provides authorization for a
>contingent fund for intelligence; 28 U.S.C.A. 537, which authorizes special
>funds for the FBI; the National Security Act of 1947 which, inter alia,
>charges the Director of Central Intelligence with responsibility "for
>protecting intelligence sources and methods from unauthorized disclosure";
>the National Security Agency Act of 1959, which provides special protection
>for NSA information (50 U.S.C.A. 402 Note). Even the Freedom of Information
>Act (5 U.S.C. 552) provides exemptions from disclosure for certain
>information including matters "specifically required by an Executive Order to
>be kept secret in the interest of national defence or foreign policy".
>I do like this system. It has served us well for over 200 years.

But the question is whether all these statutes are constitutional.  There's no
doubt that Congress enacted them.  But that doesn't count against my
point about the US Constitution.  All it means is that these statutes have
never been contested in court for their constitutionality.  The reason they
have not been contested in court is that no one has standing to contest
them.

As far as arguing legal points with law professors, I encourage my students
to do that at every opportunity.  I don't learn a thing from talking; I can
only learn from listening and reading.

Tony D'Amato



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