Secrecy and Self-Governance
The next time our government insists it needs to keep things secret from us, we should remember where we are today. From the day it took office, the Bush administration has wrapped itself in unprecedented secrecy. It intentionally hid critical information about its deliberations and decisions from Congress, the courts, the press, and the American people. Those who attempted to investigate or disclose what the administration kept secret were attacked and discredited.
For a time, this strategy worked. Protected by a shroud of secrecy, the administration appeared competent and all-knowing. Armed with a monopoly on information, it countered criticism as “ill-informed.” And so, we went to war. By almost all accounts, the war in Iraq has proved to be a disaster. The sad truth is that if the American people had known what the members of the administration knew when they knew it, many frightful errors might well have been avoided. That is why we have the First Amendment.
As we learn more each week about the wrong turns, mistakes, and misjudgments that led us to our current dilemma, we should reflect on the role of openness in a democratic society. We must learn the lessons of this experience. As citizens of a self-governing nation, we are charged with the responsibility to understand, monitor, and evaluate the policy judgments of our elected representatives. We elect a president and members of Congress to make decisions on our behalf. But they are answerable to “We the People.” This means not only that “We the People” get to vote every two, four, or six years, but also that we have a right to know what our representatives are up to. We delegate to them a certain degree of authority, but they are accountable to us.
It is understandable that those in power are reluctant to share information. Why would anyone in authority want to enable others to second-guess them? Why would they want their mistakes exposed? Those in power always believe they should have carte blanch to make the decisions they think best, without interference. “Trust us” is a perfectly logical demand from the perspective of those who hold the reins of power. But in a self-governing society, when those in authority say “trust us,” we are in peril. The American constitutional system is premised on distrust of those to whom we delegate authority. Separation of powers, checks and balances, staggered terms of office, a bicameral legislature, judges with life tenure, freedom of speech, and freedom of the press are all premised on distrust of those in authority who say “trust us.”
Excessive government secrecy is the enemy of democracy. Secrecy cripples public debate. Citizens cannot understand, monitor, and evaluate public policies if they are kept in the dark about the actions of their elected representatives. Secrecy is the ultimate form of censorship because the People do not even know they are being censored. Excessive secrecy is also the enemy of competence. We make better decisions when we consider more rather than fewer perspectives. We make better decisions when we openly debate the alternatives. We make better decisions when we know we have to justify our judgments and know we will be held accountable for our mistakes. Secrecy undermines all these values.
Excessive secrecy has been a consistent theme of the Bush administration. It refused to disclose the names of those it detained after September 11. It has adopted a crabbed interpretation of the Freedom of Information Act, rendering millions of pages of government documents unavailable to the American people. It closed deportation proceedings from public scrutiny. It has redacted vast quantities of “sensitive” information from thousands of government websites. It secretly authorized the National Security Agency to engage in electronic surveillance of American citizens. It secretly established prisons in Eastern Europe and secretly authorized rendition and torture. It secretly authorized the indefinite detention of American citizens. It has concealed the cost of its policies in “special appropriations” bills, threatened public employees and newspapers with criminal prosecution for revealing its secrets, and deliberately masked its motives, its policies, and its failures from We the People.
Some measure of secrecy is, of course, essential to the effective functioning of government, especially in wartime. But the Bush administration’s obsessive secrecy has constrained meaningful oversight by Congress, the press, and the public. It has directly and arrogantly undermined the vitality of democratic governance and it has predictably led to incompetent decisionmaking. One cannot escape the inference that the cloak of secrecy imposed by the Bush administration has less to do with the necessities of the “war on terrorism” than with its desire to insulate executive action from public scrutiny. Such an approach to governance weakens our democratic institutions and renders our nation less secure.
The responsibility for all this rests first and foremost with the president, but it rests also with Congress, the press, and the American people, who failed to meet their responsibility not to fall victim to the plea of “Trust Us.” If history is a guide to the future, this will not be the last time a president attempts to hide critical information from the American people. We will best serve our government and our nation if we remember our mistakes of the present.
This post was written jointly by Geoffrey R. Stone and William P. Marshall, Professor of Law, The University of North Carolina.