We have a secrecy problem. This may seem odd to say during an era in which the most intimate details of individuals’ lives are on display. Yet government is moving behind closed doors, and this is definitely the wrong direction.
In fact, I’m dismayed by how often public officials fight not to do the public’s business in public. And I’m not just talking about the federal government.
City and town councils regularly go into executive session to discuss “personnel issues” that might or might not truly need to be carried on outside public view. And let’s not even talk about what can go on behind closed doors when it comes to contracting.
At the state level, lawmakers exempt themselves from public records laws, underfund public watchdogs, and exempt lobbying expenditures from sunshine laws. “While every state in the nation has open records and meetings laws, they’re typically shot through with holes and exemptions,” the Center for Public Integrity reported last year. “In most states, at least one entire branch of government or agency claims exemptions from the laws.”
In case you’re wondering whether this has an impact on real people’s lives, it’s worth remembering that thousands of emails released in the wake of Flint, Michigan’s water crisis revealed “what appears to be an active effort by state employees to avoid disclosure of public records under [freedom of information laws],” according to Governing magazine.
Meanwhile, there’s no shortage of efforts to keep the public from learning all sorts of details about how the federal government conducts business.
Campaign contributors increasingly manage to avoid disclosure of their political activities. Government contractors are not subject to most of the transparency rules that affect federal agencies — even as more and more business is being done through contractors.
The 72 federal inspectors general who are appointed to ensure the efficiency and accountability of the agencies they oversee face constant efforts to limit their access to records. Routine information is classified and kept secret; members of Congress joke that what they’ve just read in a top-secret document was taken from the front page of the New York Times. Yet they themselves increasingly rely on omnibus spending bills — which are put together behind closed doors by a handful of leaders and congressional staff with no public scrutiny.
Most notably, of course, secrecy extends to national security issues. There are some government secrets that are necessary to protect, and a balance has to be struck between protecting national security and openness. But the presumption should be in favor of openness. Those who favor secrecy should make their case in public and not rely on the old adage “Trust me.”
Take the question of the U.S. drone program. The overall program may be necessary, and technical means, operational details, intelligence methods are all rightfully classified. But that should not be an excuse for hiding information from the American people about what we’re doing with drones. Do we want our resources spent on targeted killing programs? Who determines who gets killed? What’s the evidence on which we base who gets killed? How many innocent people have been killed? The American people have a right to know what’s going on. But we’re being kept in the dark.
Openness is not a panacea, but it makes good government more likely. Representative democracy depends on our ability to know what’s being done in our name. We cannot exercise the discriminating judgment required of citizens about politics, policies and politicians if we do not know what they’re doing. Nor is it possible to maintain the checks and balances required under our Constitution without openness and transparency. We have to shine a bright light on the actions of public officials so that it’s more likely they’ll act with integrity. Justice Louis Brandeis gave perhaps the most famous formulation of this requirement in his 1913 statement, “[S]unlight is said to be the best disinfectant.”
But Judge Damon Keith of the Sixth Circuit Court of Appeals put an exclamation point on the idea in a 2002 ruling that the government could not carry out secret deportation hearings without proving the need for secrecy. “Democracies,” he wrote, “die behind closed doors.”
Lee H. Hamilton
Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government. He was a member of the U.S. House of Representatives for 34 years.