Obama's cloak of invisibility: how secrecy frustrates challenges to counterterrorism tactics.

• Author: Sullum, Jacob
• Position: Column

WHEN HE WAS running for president, Barack Obama criticized George W. Bush's expansive vision of executive power, saying, "I reject the view that the president may do whatever he deems necessary to protect national security." The day after taking office in 2009, Obama declared that "my Administration is committed to creating an unprecedented level of openness in Government."

Those two positions went together, because secrecy requires power and power thrives in secrecy, as Obama himself has been demonstrating for the last four years. Three recent cases illustrate how breaking his promise of "the most transparent administration in history" has helped Obama break his promise not to use national security as an excuse to violate civil liberties.

After 9/11, Congress loosened restrictions on national security letters (NSLs), a kind of administrative subpoena, first authorized in 1986, that the FBI uses to demand information from phone companies, Internet service providers, and financial institutions. NSL "requests" skyrocketed from a total of 8,500 between 1986 and 2000 to more than 56,000 in 2004 alone.

The Obama administration has made liberal use of NSLs, which in 2010 allowed the FBI to peruse information about 14,212 American citizens and permanent residents--a new record--without bothering to get clearance from a judge. If you were one of those people, you probably will never know, because NSLs are almost always accompanied by instructions that prohibit recipients from discussing them.

In March a federal judge ruled that such gag orders violate the First Amendment. "The FBI has been given the unilateral power to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs," U.S. District Judge Susan Illston wrote. "As a result, the recipients are prevented from speaking about their receipt of NSLs and from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences."

Just as Americans do not know when the government uses secret subpoenas to look at their telephone, Internet, and financial records, they do not know when the government secretly listens to their conversations or reads their email...