By Paul Rosenzweig, The George Washington University Law School
Bradley Manning, Julian Assange, and Edward Snowden are, by now, names familiar to most Americans. Some think them as heroes and patriots; others consider them villains and traitors for harming an effective government. This dichotomy reflects the fundamental tension—the perpetual and unsteady equilibrium between secrecy and transparency; between security and freedom that pervades American society. It’s fundamental because the tensions are ineradicable and inherent in the structure of the American government.
Limited Government or Effective Government?
Americans value limited government because humans value freedom and frequently think that government is as much a threat to freedom as it is an enabler of it. And so we value checks on government excess so high that, for example, the right to freedom of speech is enshrined in the First Amendment.
The converse of this distrust of government is a foundational insight of the Declaration of Independence. The declaration is an assertion that the rights to life, liberty, and the pursuit of happiness are inalienable and belong to us by virtue of our humanity; and they are not, in any way, derived from or granted by the government. And, likewise, we see rights of privacy and security against government intrusion as critical components of our rights as citizens.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
A Stable Society
At the same time, however, we want a government that works and works well. The desire for order and government protection from threats stretches at least as far back as the Hobbesian concern that without communal security, life is nasty, mean, brutish, and short. That concern finds strong echoes in the constitutional preamble, which sets as one of the priorities that the new government should provide for the common defense.
Before the Constitution, the new nation’s first attempt to draft a blueprint for the democratic government was something called the Articles of Confederation, which proved to be inadequate to the task. The Constitution itself was, therefore, a reaction against the ineffective government and the chaos of an ungoverned society.
A Stronger Constitution
Indeed, the framers of the Constitution sought to create a stronger government. Throughout US history, Americans have confronted crises with strong executive action—sometimes actions that trenches close to, or even crosses, the line of the law.
Examples abound, ranging from President Abraham Lincoln’s unilateral suspension of the writ of habeas corpus to President Franklin Roosevelt’s covert aid to Britain in World War II in contravention of the Neutrality Act.
But one thing unites many of these examples—the need, in some part, for secrecy in execution. Roosevelt’s circumvention of the Neutrality Act to assist Britain during World War II would have been stopped had it been widely known to a still-isolationist Congress.
The New York Times report, some time afterward, that the National Security Agency had developed the capability to penetrate computers in China inevitably meant that it would become less effective as China took steps to thwart it; with resulting effects on American security that could not be publicly known or predicted. In short, secrecy is sometimes crucial to effectiveness.
Learn more about the First Amendment.
How Much Secrecy Is Too Much?
But secrecy and transparency are often in equipoise—too much transparency threatens security; too much secrecy threatens liberty. Late in the Vietnam War, Pentagon Papers involving the publication of a Defense Department analysis of the military campaign were leaked without authorization.
This reminded us that governments often use secrecy to conceal mistakes or misconduct—like the FBI’s surveillance of Americans in the 1970s as part of a wayward counterintelligence program—or simply to avoid embarrassment. Thomas Jefferson once said, “The natural progress of things is for liberty to yield and government to gain ground.” We must guard against this natural tendency. Philosopher John Locke wrote:
In all states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from the restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he likes. Thus, the obligation of government is a dual one—to protect civil safety and security against violence and to preserve civil liberty.
Learn more about anonymity
What’s Best for America?
Americans want an effective government, but it has to be circumscribed by law and policy. This may represent a false choice—that you can either have transparency, accountability, and liberty, or you can have secrecy, surveillance, and effectiveness. If we really were put to such a choice it would be a difficult—indeed, almost existential—question to answer.
But the United States can, and indeed, does reflect transparency and secrecy; accountability and effectiveness. Our goal should be to maximize both values. In the end, this isn’t about resolving the fundamental tensions that exist permanently in American democracy; it’s about managing them, living with them, and accommodating the competing values to the maximum extent practicable.
We all want to be safe, we all want an effective government that can provide national security, and we all want one that acts within the rule of law. We all want a government that is transparent and accountable, not despotic. And we all want a legal and policy structure that fosters our desires.
Sometimes the country gets the balance wrong. Far more often, as is to be expected in a pluralistic society, citizens simply disagree about precisely how to achieve the ends we seek. But these discussions and tensions are emblematic of the values of competing ideas; they reflect a living, breathing aspect of a functioning democracy.
Common Questions about Effective Government and Secrecy
An example would be Franklin Roosevelt’s aid to Britain in WWII, which was kept secret from Congress. In order to have an effective government, Roosevelt was forced to make a secret decision.
Sometimes, in an effort to become a more effective government, decision-makers have made bad decisions that have crossed the line of people’s personal freedom, like the FBI’s surveillance of Americans.
American history demonstrates that an effective government needs to be both transparent and secretive in different situations. What’s important is to manage both with caution.
