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...secret is absolutely secret? Even the briefest consideration of the problematic obscurely traced in such questions reveals the outline of a certain aporia. A secret, at least that which we commonly call a secret, is something that is not or should not be shared. Yet in fact secrets are always being shared. The idea of a so-called "state secret," whose history and contemporary resurgence in American law we will consider more specifically in a moment, obviously involves a secret that must be, in principle and in practice, both shared and concealed. Even the most expansive visions of executive sovereignty necessarily concede that such power must be delegated as it is exercised; and state secrets are thus inevitably shared, at least, by the "agents" of the "agencies" that carry out the policies of the state. At the same time, of course, a state secret is also rigorously concealed, not only from presumed enemies and aliens outside the state, but even from most of its own citizens. The very word "state" in this phrase seems to denote both the special status or quality of the secret (that it is a "top" secret, a kind of arcani imperii accessible only to those at the top) and its practical condition as something necessarily shared by some subset of that "body of people occupying a defined territory and organized under a sovereign government" whose "national security" is claimed to necessitate secrecy in the first place (OED "state" n., 30a).
As for the personal or private secret--the domain of what is more commonly called privacy--it too is commonly both shared and concealed: shared within the various limits of friendships, families, and communities, and concealed from everyone else. It is possible, no doubt, for a secret to be maintained by only one, by a unique and singular being. But is there any secret that remains absolutely unshared and un-communicated--not even, let us say, by actions that might later be followed back, as if in a detective story, to their secret source, nor, in the Freudian manner, by accidents, jokes, or symptoms that obliquely manifest that which is secreted within? Would not such a secret, if there were such a thing--a secret in every sense private, and thus wholly withdrawn into some pure subjective interiority--be as such deprived of all presence, and exist, if it can even be said to exist, only in the shape of a certain privation?
In any case, a secret evidently can--or must--be shared by more than one, and yet, to remain faithful in any sense to its own concept, it cannot be shared by every one. We therefore must conclude, at once, that a secret must not be shared, that a secret can only be shared, and that a secret can be shared by two, but not by three, or by three, but not by four, and so on. In those cases that are called, in English, "open secrets," and in French, "les secrets de Polichinelle," only the sharing of the secret is secret, not the secret itself; and even such sharing remains always suspended just this side of a necessary limit which it may always encounter in, for example, the voice of a child proclaiming an emperor's nakedness. Are these problems of number and limit (as such phrases and examples seem perhaps to indicate) the source of the faintly comic note that seems to play, as we shall see, around the whole idea of the secret, even in its most serious (and secretive) political form?
We will also suggest that this question of the secret is a kind of ghostly double of the question of democracy itself, to which it remains inescapably linked by exigencies at once practical and theoretical. Democracy and the secret pose a sort of double problem whose two sides can be denoted in French by the single phrase plus un (cf. Derrida, Politics 101). How many can share a secret? The secret replies, so to speak: this many, but no more. And how many can join in a democracy? Democracy replies (and can only reply, with each repetition of the question) : this many, and one more. For with each act of sharing, the secret becomes less itself while democracy becomes more itself. The secret is essentially defined by closure, by the separation of one from another, (1) but democracy would seem to be defined, at least in its essential aspiration, by an openness of literal borders ("give me your tired, your poor") as well as of its own procedures and decisions. But then, to broach one of the many urgent qualifications that must immediately be raised about such a point, how many "state secrets" can be maintained by a democracy that would still deserve this name?
We pose such questions during a legal and constitutional crisis, still unfolding as we write, regarding the state's power to subject its own citizens to electronic surveillance without judicial warrant, and the state's corresponding (or contrasting) power to maintain a veil of secrecy over the same power. The crisis involves a kind of perfectly symmetrical confrontation between state secrets and personal privacy. In the winter of 2005-6, it was revealed in the New York Times and elsewhere that the Bush Administration had, in the aftermath of 9/11, ordered the National Security Agency (NSA) to "intercept international communications into or out of the United States of persons linked to al Qaeda or related terrorist organizations" or phone calls with "one foot" in the United States and the other overseas (U.S. Dept. Justice 1). This program has apparently bypassed the procedures mandated by the Foreign Intelligence Surveillance Act of 1978 (FISA) according to which international intelligence activities are be supervised by special FISA courts. Such reports sparked more than 30 lawsuits by individuals and organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), the Electronic Frontier Foundation and others; and in response, the administration has evoked the so-called "state secrets privilege," by which they allege that even to air the facts of the case would damage national security. Correspondingly, the administration has suggested, or at least implied, that the actions of the Times and others in publishing the details of this secret government program might themselves be actionable under the Espionage Act. In the current crisis, in other words, the state claims the right to uncover its citizens' secrets, and to do so in secret.
These recent events raise practical and theoretical questions, as urgent as they are momentous, not only about the foundational concepts of (state) secrecy and (personal) privacy, but also about the myriad ways in which new technologies of communication and surveillance are transforming both. In the rest of this essay, we take some first steps toward mapping this difficult techno-political landscape. In the first two sections, we contrast the vexed state of contemporary Fourth Amendment jurisprudence with the apparent clarity and strength of the state secrets privilege. Then we go on to consider the corresponding question of the "separation of powers" in American constitutional governance, by way of accounting for the current political stalemate over the NSA warrantless wiretapping program. Finally, we circle back to make some tentative reflections about how new electronic technologies and the current legal and constitutional crisis force us to rethink the very limits of the public and the private, the citizen and the state.
1. The State of the Fourth
All I want is to be left alone, in my average home But why do I always feel Like I'm in the Twilight Zone?
--Rockwell, "Somebody's Watching Me"
Although one typically does not turn to law professors for entertainment, the entwined questions of state secrecy and personal privacy might well be an exception. Many legal writers confront what appears to be Americans' diminishing right to Fourth Amendment protection against unreasonable searches and seizures by turning to black comedy. The Fourth Amendment, writes Steven Osher, "isn't dead, but no one will insure it" (521). Surveying the recent history of courts and legal scholars trying to fine-tune Fourth Amendment jurisprudence, Eric G. Luna similarly concludes that "each [new] doctrine is more duct tape on the Amendment's frame and a step closer to the junkyard" (Luna, "Sovereignty" 787-88). In fact, however, these comic metaphors of body and car may be misleading, since they imply that the Fourth Amendment had an original, holistic integrity, that it was once healthy and young, or shiny and new. Akhil Amar, former editor of the Yale Law Journal and former legal consultant to The West Wing television series, comes closer to the crux of the problem of the Fourth Amendment when he summarizes derisively that, in American law, "warrants are not required--unless they are," and "all searches and seizures must be grounded in probable cause--but not on Tuesdays" (qtd. in Luna, "Sovereignty" 799).
Amar captures here a sense of the ongoing and increasing exceptionalism of Fourth Amendment doctrine, and it is important to remember that there is already a kind of double (or triple) exception inscribed in the text of the Fourth Amendment itself. The amendment declares, in its first clause, that "the rights of the people to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures shall not be violated," and then stipulates, in a second clause, that "no warrants shall issue, but upon probable cause" (emphases added). Not only does each clause in itself articulate an exception to the inviolability of persons and homes (which are open to "reasonable" searches, and to search warrants issued on "probable cause, supported by oath," etc.); but the grammatical relation of the two clauses is marked by an ambiguity that has sparked a long debate among legal scholars. As Luna remarks, once again introducing a certain note of mordant comedy to this dispute, "the comma between the two Clauses [...] has become a virtual Mason-Dixon line" ("Sovereignty" 791). As Luna also explains, a "conjunctive" reading assumes the second clause supports the first, meaning that all searches "are presumptively unreasonable without a warrant based on probable cause" (791). But a "disjunctive" reading, by contrast, reads the two clauses as distinct, meaning that only warrants themselves require "probable cause," and that warrantless searches are also permitted provided they are "reasonable" (791-22).
This, we argue, is the original exceptionalism of the Fourth Amendment, which thus provides no clear doctrine of privacy as such. The Fourth Amendment posits no original political wholeness to the body or the home; rather, it begins from an original (loop) hole, an always already puncturing of sovereign privacy, with the latter defined strictly, according to Catharine A. MacKinnon, as "conceptually [...] hermetic" and "inaccessible to, unaccountable to, unconstructed by, anything beyond itself" (190). Another way to say this: strict privacy, properly understood, would have some of the same characteristics as Leibniz's famed monads, which "have no windows, through which anything could come in or go out" (Leibniz n.p.). The Fourth Amendment, on the other hand, always leaves a "window" open to the eyes and ears of the State.
Indeed, as is well-known among legal scholars, "'reasonableness' may well be the law's favorite weasel word, beyond hard definition, simple in application and sufficiently elastic to reach nearly any result" (Luna, "Drug" 759). We should note here, too, the term's always potential linkage to the politico-philosophical idea of "reason of state," in which...
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