DEMOCRACY AND GOVERNMENT
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
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 Administrations 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.
1. Do you know where the Constitution says that we have a fundamental right
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 ones 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
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
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
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
The first investigation of Palins 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
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