🙅🏾‍♂️ The Government Has No Rights

What does Trump's ability to declassify documents mean for our privacy rights?

Triggers the first year associate in me

Last week Donald Trump claimed he had declassified all the documents the FBI seized at Mar-a-Lago, including those marked top secret. Can a president really do that? What does that mean for the public’s right to know? As someone who has read, written, and relied upon numerous classified documents, here are some thoughts …

YOU have human rights, civil rights and civil liberties

Let’s start at the beginning.

We live in a society inspired by Greco-Roman ideals, one that says we have “inalienable” rights. No one gives you these rights, you are born with them - they are human rights, rights you have because you are a human being. The right to life or freedom from torture are examples.

Civil rights, on the other hand, are rights you have because you are a member of a state or fall under its protection (e.g. you are a tourist visiting LA). Each country has a different set of civil rights. Often, these rights are codified in written documents like the United States Constitution - such as the right to vote or right to free speech.

Civil liberties are freedoms obtained through restraints on government action - for instance the 13th Amendment prohibits the government from enslaving human beings.

Whereas the government ONLY has obligations

“The Social Contract” is the cornerstone of American civil rights and political philosophy … but it ain’t perfect.

Unlike you or me, the government has no rights. It is not an individual. Nor is it a corporation (which we often treat like a person). Instead, the government only has obligations to the people who place it in power above them. This is the social contract we all make: we the people will give you power, and you the government will carry out the necessary laws to ensure that our rights and privileges are protected.

But the government acts like it has rights

For instance, the government classifies information and prevents its citizens from seeing it. It does this by labeling information secret, or top secret etc. Sharing that information without the government’s consent is a crime.

By keeping secrets the government acts like it has a right to privacy. But if the government has no rights, if it only has obligations, then it shouldn’t be able to assert any privacy rights at all … right? Instead, if the government only has obligations, then every citizen should be able to read government documents without limitation.¹

And the government is the only entity that can police its own rights

When the government marks something top secret, the only ones who can determine what the government classifies or doesn’t are agents of the government themselves. If that’s not textbook conflict of interest, I don’t know what is.

For instance, if you file a lawsuit against the government and some of the evidence at trial is top secret, the government can withhold that evidence and cite national security as the reason. Who gets to decide if the information is truly worthy of classification? The government. Who gets to decide what information gets withheld at trial? The government. In some cases the judge can’t even see the information because they don’t hold the appropriate security clearance. And in almost all cases the assertion of this “state secrets privilege” by the government will get your case thrown out due to lack of evidence.

Every year more and more documents get classified. As early as 1956, the U.S. Department of Defense estimated that 90% of its classified documents could be publicly disclosed with no harm to national security. So why aren’t they?

If a government executive goes around misclassifying information, perhaps for political purposes, the only real punishment is administrative - they can be reprimanded or perhaps fired. There are no criminal penalties because how would you prosecute a case without the evidence? (you know … because the evidence is classified).

This means that the President has tremendous power to control information

Normally, there are government officials who have the responsibility for classifying and declassifying information. The president doesn’t usually get involved. But there’s nothing that says presidents can’t make information secret or declassify it on a whim (and some have). They don’t need to follow any procedure. Nor do they really need to leave a written record.

As in other areas, Donald Trump’s behavior here is unprecedented - we don’t really have laws or limitations on a president’s ability to make information secret or to reveal it to the world. And thats because we place little to no restrictions on the government’s “right” to privacy.

Now imagine if YOU had the same right to privacy the government has

What power that would be.

You’d have the ability to classify or declassify parts of your life on a whim with the full force of the law behind it.

Instead, we live in a world where your individual privacy rights are limited, largely unprotected and hollow:

• In America today, a pregnant woman has no federal right to bodily privacy and autonomy, whereas the government’s right to privacy can get entire cases thrown out of court.

• If Facebook shares information without your consent with your friends, you’re out of luck, but if you share the government’s classified information without their consent you go to prison.

• If corporate records of your personal information are leaked or hacked, your passwords compromised and 15k charged on your Home Depot credit card (I wonder why I am using this very specific example), you have no power to sue the hacker. Not so for the government.

Its time for individuals to enjoy the same strong privacy protections the government does. One way is to call on your congressperson to support the American Data Privacy and Protection Act - which already has strong bipartisan support.

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1. Indeed, this is the rationale behind the Freedom of Information Act, which is based on the idea that the government has no privacy rights, only obligations to be transparent with those who put it in power.

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