It’s Time to Audit America’s Secrets

Declassification should be determined by the American people, not partisan politicians.

House Intelligence Committee Chairman Devin Nunes on Capitol Hill in Washington, D.C., on July 25, 2017. (Drew Angerer/Getty Images)
House Intelligence Committee Chairman Devin Nunes on Capitol Hill in Washington, D.C., on July 25, 2017. (Drew Angerer/Getty Images)

The battle over the disclosure of the memo on the Russia investigation prepared by Republican Rep. Devin Nunes has been analyzed mostly in narrow partisan terms, but it has much larger significance for the health of American democracy. A key weakness of the U.S. democratic system, and indeed all democracies, is the paradox of secrecy: voters need to know what the government does in order to evaluate it but the government needs secrecy to effectively serve the public. As parties have polarized, the tensions inherent to that paradox have become increasingly impossible to ignore.

These tensions now demand some attempt at a resolution, even if any such answer will inevitably demand sacrifices from current stakeholders. The most plausible solution may be one that nobody in the political establishment has yet seriously contemplated — the creation of a system of public audits for government secrets.

Everyone knows that secrecy is a problem for democracy because voters cannot easily evaluate the government if the government acts in secret. This leads to endless calls for greater transparency, with the obligatory invocation of Supreme Court Justice Louis Brandeis’s memorable line that “sunlight is said to be the best of disinfectants.” What this trite sentiment overlooks is that secrecy is also essential to democracy. No democracy can function unless the government is permitted to act in secret.

To see why, consider all the things that voters ask the government to do: protect us from foreign enemies; punish criminals; resolve legal disputes among citizens; provide for education, health, and safety; and so on. All of these activities require a significant dose of secrecy. The government can act only if it raises money through taxes. And to raise taxes, it needs to know the private financial information of citizens — their wages, savings, and so on. But people don’t want this information to be publicly known, so they demand that the government keep this financial information secret.

If the government provides health care — as the United States does through the Veterans Health Administration, Medicaid, Medicare, and other programs — then it will need to know personal health information about patients. People want this information kept secret, which means that the government’s health-related activities will remain largely secret. If the government educates our kids in public schools, then government officials will know all about the capacities of our children, which most people would prefer to keep private. When the government responds to financial crises, as it did in 2008, it needs to be able to hide financial weaknesses from the public in order to reinstate confidence in the system. In enforcing the law and protecting the nation, the government must keep plans secret and often its capacities. Civil libertarians sometimes grudgingly accept that “troop movements” should be classified, but the truth is that the military, if it is to function, must keep all kinds of things classified — weapons systems, military strategies, soldiers’ health and disciplinary records, and so on.

If all of these activities are to be kept secret, how are voters to know whether the government is acting in their interest? From time to time, the pressure of this contradiction bursts into the open. In the George W. Bush administration, the government claimed that it needed to keep counterterrorism tactics secret — including what turned out to be domestic surveillance and coercive interrogation — while civil libertarians argued that the public needed to know what was being done in its name and at what cost. In the Barack Obama administration, a controversy exploded over the IRS’s enforcement strategies, which Republicans argued were biased against Tea Party-related organizations. The IRS, of course, needs to keep its enforcement strategies secret so that taxpayers (or nonpayers) don’t game them. And now in the Trump administration, we see a conflict between those who argue that the confidentiality of FBI investigations must be respected so that the FBI can rely on secret sources and those who argue that if the FBI is given confidentiality, it can investigate in a politically biased way.

How do we resolve this dilemma? One popular solution is to kick the can to a government official who we can supposedly trust, such as a judge or inspector general. This is a kind of compromise between the demands of democracy and secrecy — the official is not elected, and so insulated from political pressures, but for that reason can be trusted to act fairly. But as we have just seen, this solution is not a complete one. If you don’t trust an IRS agent, why would you trust an IRS inspector general?

Republicans argue that a politically biased FBI deceived a supposedly neutral judge on the Foreign Intelligence Surveillance Court (FISA). Back during the Bush administration, civil libertarians questioned whether FISA judges could be trusted or were just rubber stamps for the intelligence agencies. Indeed, Democrats’ arguments that we should trust the FBI and the CIA over Trump, while certainly understandable, are ironic in the light of the history of those agencies, which have in the past acted in deeply troubling, even anti-democratic ways.

Another solution is to rely on leaks. The idea is that if the government does something truly bad, government employees will leak information to the public, sometimes at great cost to themselves, as shown by the case of Edward Snowden. But this is hardly a solution. If democratic governments need to act in secrecy, they can hardly tolerate leaks, which may be sprung for bad motives as well as good ones. To tolerate leaks is just to delegate to an unelected, often low-level employee the discretion to undermine a government program that she may disapprove because of her own ideological predilections.

The real solution that has kept American democracy alive so far is a different one: It relies on the two-party system rather than on layers of bureaucratic independence. The implicit deal is that the executive branch may act secretly but must share classified information with members of the opposite party in Congress. If the executive acts wrongly, then the opposing party may raise a hue and cry; if it doesn’t, we, the people, can assume that the government is acting in the broad public interest even if we don’t know what it is doing.

The problem we face today is that as partisan cooperation breaks down, we no longer know which side to believe. Indeed, the Nunes controversy shows how mixed up things have gotten. Usually, the party out of power demands disclosure from the executive; here, Democrats were demanding secrecy. This allows Republicans to quote Brandeis and to allege that Democrats object to the memo’s disclosure not because it is misleading but because it is accurate and will undermine their witch hunt against Trump. The two-party solution assumed that Democrats and Republicans would be able to agree on some ground rules as to what should remain secret and what should not remain secret, but if the two parties can no longer cooperate, the secrecy paradox returns with full power.

Hence the need for a public auditing system, one that requires the government from time to time to release batches of classified information to the public — and in real time, not decades later, as is the current practice. For this to work, all secret information at a given time — tax records, health records, military strategies, weapons systems, CIA analyses, FBI and IRS investigations — would need to be accessible. A citizens’ counsel could be created, with the authority to review that secret information, subpoena government officials to defend their classification choices, and disclose the information to the public if the officials fail to persuade.

The citizens’ counsel would need to be ideologically diverse and broadly representative. We would also need to take the risk that leaks would occur and — bluntly — that citizens, as amateurs, would make terrible mistakes, releasing information that ends up undermining government programs. As security officials warn, this could even lead to deaths of sources and other innocent people. But that may well be the price of democracy. Indeed, in the absence of such reforms, and in the face of the present political and institutional acrimony, we may be paying a higher price already.

Eric Posner is a professor at the University of Chicago Law School. His latest book, Radical Markets, will be published in the spring.

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