DEMOCRACY AND GOVERNMENT SECRECY

A democratic society is an open society. Information about the society, including both the actions of the government and the qualifications and associated professional behavior of election candidates, must be available to everyone. The only exception to this is personal information, about individual members of the society, including its political leaders, which must be kept secret to preserve our fundamental right to privacy.

The requirement for openness has two sides. The first is that to hold the government accountable, we need to know what it is doing. Officials regularly attempt to claim a right to secrecy, not over their personal lives but instead their behavior in office, to cover up wrongdoing. There are many different types of wrongs, but the three most important categories are financial corruption, conspiracies to stay in power, and criminal behavior by the military and the police.

Secondly, to make the best electoral choices, the people need to know everything about government behavior, policy, and candidate qualifications. Only then can we make the informed decisions that democracy demands.

In the U.S., the Bush Administration has done everything possible to keep its activities secret, from habitually claiming “executive privilege” to deny information about its behavior to Congress, to refusing to release the records of White House visits (presumably to keep hidden the Administration’s contacts with criminal lobbyist Jack Abramoff). In the current election campaign, vice presidential candidate Sarah Palin is attempting to halt an investigation in a case where she is accused of abuse of power as Governor of Alaska. (She also used secret email accounts outside of the state system to communicate with her staff.) The United States Military and the CIA use their own claim to secrecy – in the service of national defense – to cover up atrocities, such as the killing of noncombatants and the use of torture.

Government secrecy is only justifiable in the narrowest of circumstances, mainly to protect lives that verifiably are at risk (e.g., intelligence sources, soldiers about to go out on patrol, etc.). It also should be maintained for the shortest possible period. Again in the U.S., the need for such openness has been enshrined in the right of the people to demand information under the Freedom of Information Act (which right the Bush Administration has also attempted to deny).

Knowing that their claims are regularly unfounded, political leaders try another gambit. Instead of presenting a good argument for why they need secrecy, they imply that it is acceptable – because they can be trusted.

Democracy incorporates a system of checks and balances to prevent the abuse of power. Notwithstanding the question of whether our leaders are deserving of such trust (NO!), it is important to recognize, as discussed in the Social Checks and Balances lesson of Lessons in Democracy, that trust is not a check.


Forum comments

1. Do you know where the Constitution says that we have a fundamental right to privacy?

It is true that a right to privacy is not overtly stated in the U.S. Bill of Rights. But, such a right is inferred in Amendment IV, which begins: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...”

An intrusion into one’s private life is effectively a search, and the acquisition of personal information (which would fall under “effects”) is a seizure. Further, absent out prior assent and, where we demand it – for our information – the receipt of payment, they both are unreasonable.

The right to privacy has also been located in Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It is important to consider the environment in colonial America in the 1780s, when the Constitution was written. The right to privacy in your home and for your person was viewed as being so obvious that other than the prohibitions listed in Amendment IV, it was not even deemed worthy of mention. If someone invaded your privacy, you clearly had the right to defend yourself.

The authors of the Constitution also recognized, though, that the future could bring all manner of changes. As I put it in the Constitution lesson of Lessons in Democracy:

“The drafters of the U. S. Constitution understood that they could not prepare a document that explicitly encompassed everything the future was to bring. Their intention was to create a charter that could successfully adapt to and address such changing conditions. Their hope was that subsequent generations of jurists would embrace this spirit.”

We now live in a world where personal privacy is under assault from many different directions, and in many new ways. One the more worrisome of these is the ability of Internet corporations such as Google and Facebook to track our online behavior. Another is the use by companies and government agencies of phone GPS systems and RFID tags to identify our physical location. It is clear that the risk of loss of privacy is more severe than ever before. We need protection, against predatory corporations and intrusive government. The best way to guarantee this would be through an amendment to the Constitution that plainly states our privacy right.

I can also offer a reverse argument: If we do not have a right to privacy, then what? Should we accept that others are free to read our private communications, to know our precise location, to learn our medical history, and even to be allowed to look into our bedroom at night? Where do we draw the line?

The answer is simple. We should begin with complete personal privacy, and then only accept intrusions on a case-by-case basis and where it is unquestionably justified.

2. To even imply that a government must be completely open about everything is total nonsense. Are you saying that when we run a military operation we should announce exactly what we are going to do for the enemy to read and hear? If you had a son in Iraq or Afghanistan would you want the New York Times or NBC telling the enemy of our troop movements and dispositions including the names of our troops?

I thought I was pretty clear, by saying that secrecy is acceptable when lives verifiably are at risk, and by citing the example of soldiers about to go out on patrol. These statements logically extend justifiable secrecy to all combat and also intelligence missions, as well as any information that directly bears upon them.

And yes, barring these few rigorously defined exceptions, and others that can legitimately pass such a hurdle, government should be completely open.

Another way to think of this is to ask the question, where do we begin? As with complete personal privacy, we should assume a fully transparent government, and then consider candidates for secrecy on a case-by-case basis. The Bush Administration, on the other hand, has acted on the belief that everything about government behavior is and should be secret, and only – grudgingly – revealed its activities when ordered to do so by the courts or in response to the investigations of journalists and activists.

For example, we want a President who says to the people, “I have been asked by lobbyists for the financial services industry, or the pharmaceutical industry, etc., to do the following … Their lawyers have even offered to write the associated laws. What do you want? I serve you. What would you like me to do?”

A President who would be open with the American people in this way (Congresspersons should do the exact same thing with their constituents), would make government much less opaque. It would further effectively end the corporate lobbyist industry.

3. If there is a law that says that Sarah Palin can't have as many email accounts as she can set up, then cite it. Was anything incriminating found in those “secret accounts”... not as far as even the most anti-Republican media has been able to find. Are you trying to tell me that if Sarah Palin held closed door conversations instead of email she would not be entitled to do so? What is the difference? If you claim that she should do all state business using only her government email account for the record, that is like saying that she cannot discuss state business over lunch in a corner of a restaurant because there will be no public record of that either.

About Sarah Palin, of course she can have as many private email accounts as she wants, and officials are free to use such accounts for non-official communications – even with other officials. But, all government business should be conducted on government emails. (That a government communication is on a private email system, does not make it a private communication.) This gives investigators a paper trail to follow in cases where there is probable cause that a crime has been committed.

This is identical to the power that the government has to monitor the Internet, phone and mail communications, and meetings, of anyone, if there is said probable cause.

The first investigation of Palin’s alleged abuses of power has been completed, and she was found guilty. The judgment was based on witness interviews, but it should have included her large collection of private email accounts as well, since she used such accounts for government business. Additional investigations may well extend to the emails, although this will – appropriately – require a warrant.

Needless to say, Sarah Palin has the right to discuss government business in meetings. The law does not state that all official behavior is a matter of public record. But, if government business is conducted by email, barring some extraordinary reason it should be in government email accounts. In fact, government email communications are routinely saved. (Email is simply the modern alternative to mail and other paper communications, which were/are also saved, i.e., filed.)

Again, to view this argument in reverse, officials are public servants. What reason is there not to use an official account? Why would they object to the creation of a record of their service, particularly since this record would only be accessed in cases where crimes are suspected to have been committed, and because even in those cases such records would be kept secret by the investigators barring evidence of guilt?