Bradley Manning and Edward Snowden’s defenders make what seems like an unassailable argument grounded in democracy: In a democracy, the people discipline government officials who act badly by throwing them out of office, but they can do so only if they know what the government does. Hence, government policy and activities cannot be secret. Manning and Snowden, by defying secrecy, are heroes to democracy, as shown by Congress’ efforts to revise NSA powers in light of Snowden’s revelations.
But this “democracy requires transparency” argument is incomplete.
Consider the opposite argument, which we can call “democracy requires secrecy.” People exercise their democratic rights by directing the government to engage in various projects. In many cases, these projects can be effective only if they are secret. People who disclose projects that work best if they are conducted in secret undermine democracy by depriving the people of the most effective tools for governing themselves.
Thus, the debate is not “democracy vs. security,” as the press has invariably framed it. It is, paradoxically, “democracy vs. democracy.” The secret ballot is the most famous illustration of the essential role that secrecy plays in a democracy. The secrecy of the ballot protects people from intimidation so they can vote sincerely, but it also enables a dishonest government to manipulate elections since people’s votes are not publicly verifiable.
Commentators always emphasize the importance of openness to democracy, forgetting that secrecy is just as essential. Often they treat secrecy as a disagreeable golem that lurks unwanted in our democracy, whose claims must be entertained but should be treated with the utmost skepticism. The New Yorker’s John Cassidy, for example, celebrates Snowden (and Manning) for generating huge gains in public accountability, while discounting the government’s claims that he caused serious harms to national security by revealing methods to enemies who can henceforth evade our spies.
Cassidy apparently doesn’t believe these government claims, perhaps because the government doesn’t offer up the corpses of agents as proof. But if the government can punish leakers only after proving that they have caused severe harm, then it will rarely be able to punish them, because the harm—or how the harm was caused—must itself remain secret for national security purposes. Courts have long recognized this problem, which is why they developed the state secrets privilege, which enables the government to avoid disclosures on its own say-so. This doctrine receives nothing but scorn from commentators, who should laud it for promoting democracy by empowering the people to direct the government to engage in secret activities.
Some say we can evade this paradox by limiting secrecy to narrow domains of government activity. The usual line is drawn around national security. But such an argument does not rescue Manning and Snowden—who disclosed national security–related secrets. And in any event, even this argument collapses before the democracy-vs.-democracy paradox.
It is precisely in cases of national emergency that the government poses the greatest threat to the people. When enemies threaten, the people are most willing to tolerate extraordinary action and put their trust in their leaders. If we don’t know where the troops are, we might find out too late that they have crossed the Rubicon and taken up positions on the homeland. So if we willingly tolerate secrecy during emergencies, we ought to tolerate it whenever it furthers public purposes, even (or maybe especially) during normal times when the risk of government abuse is more limited.
Another reason is that, in fact, all kinds of “normal,” nonemergency policies require secrecy. When we pay taxes and submit bills to Medicare or Medicaid, we hope very much that the government can keep that information secret. The IRS’s secret algorithm for detecting abuse of the 501(c)(4) tax exemption enraged conservatives because they believed that it was biased against conservative groups. But if the IRS were forced to disclose its auditing algorithms, tax cheaters could readily evade detection, and the democratically approved goal of raising revenue for public projects is defeated. Secrecy is just as essential to democratic governance as transparency is—neither is conclusively more important than the other—and the risk of abuse is the price we pay for the benefits of effective policy.
Could courts provide a way out of this thicket? Many think so, arguing that judges can prevent government abuse while protecting secrecy by examining compromising evidence in camera.