In this diary I would like to explore the question of government secrets in a democracy. That is, I will assume some basic democratic ideas about just governance and set two views about the justification for state secrecy in contrast. My principle assumptions will be that it is within the just powers of government to keep state secrets for national security purposes and that the exercise of just powers of government must be "of, by, and for the people." The views I will discuss are: (1) that the people vest in their elected leaders the plenary authority to keep secrets from them and (2) that the people entrust their leaders to keep secrets only in accordance with limited principles and procedures that the people assent to. I will argue that although (1) has some democratic principles behind it, it ultimately rests on an "authoritarian argument," which I define as an argument that calls for the forfeiture of liberty in exchange for security. Thus, (2) is the model for democratic justification for secrecy.
At first blush, it looks like state secrecy and democracy are basically antithetical. Any argument for secrecy is an argument for a
less informed public, but surely the exercise of power "of, by, and for the people" requires their
informed consent. Furthermore, the idea that a decision to keep a secret might be made democratically is absurd on its very face. How can the population examine the secret and also keep it? Put even more starkly: how can one keep a secret from oneself?
In fact, I think that there are plenty of ways that, broadly speaking, one could keep secrets from oneself. A cancer patient might, knowing the importance of a positive attitude, tell his oncologist to keep bad news from him until it was absolutely necessary for him to know, for example. A person might even shut himself off from information just by avoidance. Maybe knowing about serial killers is very disturbing to him so he quickly flips the channel when there's a documentary on that topic. That stretches the normal usage of "secret" but it is indeed keeping information from oneself. There are two ways that we may keep secrets from ourselves: (a) by giving someone the authority to keep information from us and (b) by avoiding information that we don't want to possess. These seemingly correspond to the two possible democratic justifications for state secrecy mentioned above: (1) that the people vest in their elected leaders the plenary authority to keep secrets from them and (2) that the people entrust their leaders to keep secrets only in accordance with limited principles and procedures that the people assent to. There's an analogous relationship between (a) and (1) and between (b) and (2) are intuitive for now, but I will note that there are important dis-analogies that will come out below.
My argument is that (2) is the proper theory of democratic justification for state secrecy. I proceed below by basic disjunctive syllogism. That is, I will try to show that (1) has anti-democratic consequences, leaving only (2). To be fair, I'll also discuss whether (2) has anti-democratic consequences. I leave myself open to the charge of false dichotomy, though I can't think of any alternatives to (1) and (2).
Initially, (1) looks like it is democratic and preserves the principle that the power to keep a secret is only exercised of, by, and for the people. The leader in whom the power to keep a secret is vested is, importantly, an elected leader. Therefore, the people maintain their autonomy over what is kept secret from them by electing leaders that they trust. This looks just like the case with the doctor. We know that it is good for us to have national security secrets kept and vest the authority to do so in leaders that are trusted by enough of us to get elected.
However, there are significant ways in which the analogy between (a) and (1) breaks down. We motivated (a) with the example of an oncology patient. In that case, the patient gives the doctor the narrow authority to keep certain information about the progress of his cancer from him. The patient has not, however, authorized the doctor to withhold information that his wife is cheating on him, nor does the patient believe that the doctor might receive such information if it were true. In the case that motivated (a) there is a narrowly defined quantity of information that the patient has authorized the doctor to withhold and a narrowly defined quantity of information that the patient might expect the doctor to have. Furthermore, the information that the doctor is authorized to withhold and the information that the patient expects he might have are the same. In fact, (a) is just a means to (b). The patient has not granted the doctor broad or plenary authority to keep secrets, only narrow authority to withhold specified information.
Indeed, the democratic basis for (1) breaks down as well. Once a leader has plenary authority to keep secrets, he or she may withhold information that the public would have wanted to know. That's an awkward counterfactual, but one that is important to this discussion. On a democratic theory, we want P to be kept secret only if it is the case that the public would wish that P had been kept secret had they known that P. The authority granted in (1) gives a leader both the power to withhold and the access to information that the public would have wanted to know.
(An aside: I have a post on my blog about the claim by an ethno linguist that the Priaha language does not have subjunctive clauses like "would have wanted to know." Not related to this diary except tangentially, but perhaps of interest to some.)
In fact, the arguments that are usually forwarded for secrecy policies of type (1) are basically anti-democratic. The government is set apart from the people in the role of protector and the duty of government officials to protect the people is generally emphasized over their duty to obey the people. Familiarly, when policies of type (1) are defended the "authority" of leaders is emphasized: They know more than us and are more fit to judge than we are what should and should not be kept secret. Sometimes theocratic justifications for authority, harkening back to pre-democratic concepts of government, are even invoked. Kings once claimed divine rights, and now some democratically elected leaders imply that they should be trusted with extensive authority based in part on the claim that the were selected by God and not the people. Finally, the only arguments that can be forwarded for (1) will violate democratic principles because (1) vests authority in individuals to isolate decisions about secrecy from public scrutiny. This is an authoritarian argument which demands liberty--in the form of input into choices about secrecy--for security. Furthermore, secrecy of type (1) affords power to undermine the basis for democracy in informed consent of the governed through the manipulation of information by mechanisms that are hidden from the public lens.
Does (2) fair any better? Perhaps it will turn out that secrecy and democracy are in fact anti-thetical. If that is the case and if (as it seems) secrecy is necessary for security, it could turn out that liberty and security are in fundamental tension. I do not think that this is the case and I think that the emphasis on control over principles and procedures in (2) shows how both liberty and security can be safeguarded by exercise of the just powers of a democratic government.
Initially, (2) looks good. Type (2) secrecy is like when an individual keeps information from himself by quarantining himself from a certain type of information. By having input into the principles whereby information is classified the people select categories of information to keep from themselves without examining each piece of information individually and thus already revealing the secret. This means that there must be procedures for classification and review that ensure that only secrets that fall into the democratically selected categories become classified.
However, aren't we thereby just shifting the type (1) authority to the individuals in charge of executing the procedures? At best, this seems only to take us from type (1) secrecy to type (1) secrecy with type (1) secret oversight. Maybe there's some mitigation of the authoritarian problems with (1), but they don't disappear entirely. This problem is solved through independence and accountability. In a type (2) secrecy procedure that is democratic there must be three parties involved: an executor of the secret activity; a reviewer that ensures the secret activity accords with principles; and legislators that are public ally accountable, public ally debate rules and procedures, and independently appoint and evaluate reviewers.
This forms a basis for understanding how the public can democratically keep secrets from itself. In practice, circumstances may make type (2) secrecy difficult. For instance, on the physical battlefield I have a hard time seeing how military commanders can be subject to review of the appropriateness of keeping their battle plans secret. These practical demands seem to require meta-principles guiding the exception to democratic control over secrecy. I propose: all suspensions of democratic control over secrecy should minimally be (i) narrowly circumscribed (i.e., very specifically referenced types, like "battle plans" or "troop movements"), (ii) temporary, (iii) to the greatest extent possible avoid legal authority to influence democratic decisions or infringe guaranteed rights, and (iv) subject to revelation and revocation by individuals accountable to the public.
An instance in US history where abuse of type (1) secrecy lead to implementation of type (2) principles and procedures by public ally elected legislators is, of course, the abuses during the civil rights and Vietnam War eras. Courts had granted the executive branch broad leeway in conducting foreign intelligence activities, but that leeway was abused to monitor and subvert domestic dissidents. Thanks to leaks, and to aggressive reporters some of those abuses were revealed. Congress acted first by investigating through the Church Commission then by enacting laws like FISA that used the American system of checks and balances to establish principles and procedures for the conduct of intelligence operations that might infringe on American's rights.
Laws like FISA make it much more difficult to infringe on citizen's rights and keep it legally a secret, though there remained the threat of illegal secrecy. Now America faces a challenge to the people's power through their legislators to exercise control over state secrecy. Using authoritarian arguments, President Bush has declared that Congress does not have the constitutional power to impose principles and procedures on his ability to keep secrets. To the extent that the constitution is ambiguous on this matter (which it is not, but which even the President's own claim that the authority is "inherent" rather than explicit admits), it would be an activist decision by the judiciary branch vesting anti-democratic power in the executive branch. The judiciary ought to defer to democracy, following the precedent stating that Presidential power is "at its lowest ebb" when explicitly limited by Congress. In that case, however, it is not unimaginable that the President would refuse to recognize the authority of the Supreme Court in deciding the matter, forcing a American democracy into a constitional crisis.
ifthenknots