Washington Has a Dangerous Obsession With Secret Courts

Mytheos Holt,

Article One, Section 9, clause 2 of the United States Constitution states, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

It says something about the importance of that clause that, to this day, the right of habeas corpus has been suspended only twice in criminal cases: once in the case of Abraham Lincoln’s prosecution of the Civil War (rebellion), and once in the case of detaining suspected terrorists during the Bush administration (which, at least in theory, was tied to preventing something like invasion). In other words, the idea of using secret courts to try citizens without their having any knowledge of their accuser, or of the charges and evidence, is fundamentally un-American, and our criminal law has broadly reflected that, in a remarkable show of consistency across our multi-century history.

But there’s a wrinkle: habeas corpus has only remained that foundational to American government in the realm of explicit criminal prosecutions. When it comes to intelligence gathering, civil suits, and regulatory actions, the results are far murkier. If nothing else, the recent Inspector General’s (IG) report on the FBI’s actions during the 2016 election has laid bare how much the principle of habeas corpus has been abandoned when the so-called “intelligence community” thinks it needs to act first and ask questions later.

Let’s not mince words: while the report has been spun endlessly either as a win or loss for President Trump, it is devastating to the entire FISA system. And, to their credit, FISA judges are incensed by its findings. Why not? Those findings reveal an FBI that is willing to downplay, misrepresent, and flat out ignore evidence in order to get judges to grant warrants for any actions it wants to take, even going so far as to simply not talk to other intelligence agencies in order to supplement their findings. In the case of former Trump foreign policy adviser Carter Page, this point would’ve been especially important, because the CIA could have told the FBI that Page, far from being a Russian traitor, was in fact a CIA asset himself. That’s right: the FBI literally opened a counterintelligence investigation of someone who was already a counterintelligence agent. You can’t make this stuff up.

Unfortunately, while IG Michael Horowitz did turn over a rock and reveal some pretty nasty corruption underneath, it would be a mistake to think the FBI is alone in abusing its power this way. One of the persistent flaws of the modern administrative state is that it cannot abide the glare of sunlight, seeing as transparency brings political pressure, and political pressure is a check on the otherwise unrestrained urges of supposedly “expert” bureaucrats.

To be completely fair, there are cases where shielding the people responsible for hard choices from that kind of heat does make some sense. While the FBI completely destroyed their credibility on the FISA issue, the idea that sensitive intelligence shouldn’t be aired in public settings when determining whether to surveil potentially savvy enemies of the United States is hard to argue with. The Federal Reserve often has to make decisions that are both politically toxic and economically necessary: ask the late Paul Volcker about that one. And, in bodies like the US Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB), expert opinion can and does serve the useful purpose of cutting through obscurantist legal tactics in favor of substance.

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Unfortunately, as we see in the FISA case, this freedom from public scrutiny does lend itself easily to abuse, particularly when – as in the case of the 2016 “Russian interference” investigation – those properly apolitical bodies are used as means to fight massively political battles. Secrecy is, and always ought to be, a vanishingly rare element of a government for free people. Particularly given the dangers which unchecked factional power – the most ancient bete noir of the Founders – pose.

But for the sorts of people who make up the Washington bureaucracy, unchecked factional power is practically a mission statement. Which is why the existence of institutions like FISA has led to an attempt by other agencies, desperate to keep their decisions unchecked by popular will, to emulate its model.

Probably the best example of this secrecy creep comes from a longstanding case at the Department of Labor (DOL), initiated by a highly secretive enforcement arm of the DOL, the Office of Federal Contract Compliance Programs (OFCCP), which exists to monitor federal contractors in order to check their compliance with laws that prohibit discrimination.

Now, if your radar is already pinging at the thought of what sort of people would be most interested in working at said office, let alone the question of whether its power can be justified in a world where discrimination lawsuits can easily be handled publicly by courts, you are not alone. But OFCCP gets around the fact that courts are supposed to handle this sort of thing by casting its mission as that of a watchdog making sure that federal contractors, and hence arms of the federal government, follow the laws of the institution they serve. In theory, this is justifiable. In practice, it leads to the DOL having the unilateral authority to impose whatever vision of “discrimination,” no matter how Leftist or ill-founded, on huge employers just because some of their business happens to be with the federal government. In effect, it’s a secret court where the DOL is judge, jury and executioner.

One victim of this process has been the software giant Oracle, which the DOL has been suing for alleged discrimination since the Obama era. To get completely into the specifics of their absurdly thin complaint would take too long, but suffice to say that one of the central problems with it is that they claim that Oracle engaged in sexist pay discrimination, because not all people with the title “engineer” are paid the same. With no regard for what departments those engineers work in, the relative demand for their area of expertise, or variable skill levels, all of which could explain the differences.

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That the Obama administration was lazy and willing to ignore good faith explanations for disparities in the name of social justice is not surprising. What is surprising is that this suit has been allowed to proceed under the Trump administration. Powerline notes that this is partially due to the fact that former Secretary of Labor Alex Acosta came in with the intent not to rock the boat in even the slightest way, in order to make himself a more appetizing candidate for a federal judgeship. Which means that he basically let the Obama administration DOL run on autopilot. Mercifully, current Labor Secretary Eugene Scalia is made of sterner stuff. And yet, this obvious exercise in woke ideological head-chopping goes on. Because once the administrative state decides it wants to punish a perceived enemy, no amount of democratic accountability can apparently penetrate its decision-making.

Let’s be quite clear: while Oracle is the victim in this particular situation, and has sued DOL for its ridiculous behavior, this issue is much bigger than Oracle’s office politics and pay structure. Rather, the issue is that an institution like OFCCP exists at all. There is no reason why labor disputes need to be resolved by bureaucrats, particularly when there is no complainant in the first place. Those sorts of problems are the textbook definition of what should be solved in the courts. Yet FISA envy seems to have caused even institutions like DOL to start acting as if the public’s right to know what its government is doing is irrelevant, if a progressive agenda might be thereby frustrated. It is typical Washington, which is to say typical arrogance and insouciance, combined with blinding contempt for anyone not part of the so-called “policy consensus,” and a vindictive, petty desire to punish anyone who dissents from that consensus with the appearance of law, but the acts of a shakedown.

That shakedown, and all others like it, must end. If the FISA scandal has proved anything, it is that Washington’s preference for progressive Star Chambers can only end up discrediting the very institutions that require public trust in order for the government to function at all. For the sake of justice, the administrative state’s merciless and hidden hand must be dragged into the light.