Surveillance, Secrecy, and the Search for Meaningful Accountability

Published: Sudha Setty, Surveillance, Secrecy, and the Search for Meaningful Accountability, 51 STAN. J. INT'L L. 69 (2015). One of the most intractable problems in the debate around maintaining the rule of law while combating the threat of terrorism is the question of secrecy and transparency. In peacetime, important tenets to the rule of law include transparency of the law, limits on government power, and consistency of the law as applied to individuals in the policy. Yet the post-9/11 decision-making by the Bush and Obama administrations is characterized with excessive secrecy that stymies most efforts to hold the government accountable for its abuses. Executive branch policy with regard to detention, interrogation, targeted killing and surveillance are kept secret, and that secrecy has been largely validated by a compliant judiciary that has dismissed almost all suits challenging human and civil rights abuses resulting from counterterrorism programs. Efforts by Congress to engage in meaningful oversight have met with mixed results; in the area of government surveillance, such efforts have been fruitless without the benefit of leaked information on warrantless surveillance by government insiders, since the executive branch has generally refused to make public vital aspects of its surveillance programs in ways that could give oversight efforts more muscle. At the same time, the executive branch has consistently defended the legality and efficacy of these surveillance programs. This paper considers the nature and effect of the warrantless surveillance infrastructure constructed in the United States since the terrorist attacks of September 11, 2001, and discusses surveillance-related powers and accountability measures in the United Kingdom and India as comparative examples. Through this analysis, this paper questions whether accountability over government abuses in this area exists in an effective form, or if governments have constructed a post-9/11 legal architecture with regard to surveillance that engenders excessive secrecy and renders accountability mechanisms largely meaningless.