By Austin Sarat
Austin Sarat is a Professor of Jurisprudence and Political Science, Amherst College.
With the approval of President Donald Trump, the House of Representatives released the so-called “Nunes memo” on Feb. 2.
In it, House Intelligence Committee Chairman Devin Nunes describes alleged abuses of surveillance practices by the FBI in the investigation of Russian meddling in the 2016 election. Democratic members of that committee are now pressing for the release of their own version of the events in question.
The Nunes memo was made public despite strong objections from the FBI and the Justice Department. Leaders who opposed its release, including Sen. John McCain and FBI Director Christopher Wray, said that the information it contained was cherry-picked and revealed secret information that endangered national security.
Vice President Mike Pence responded by claiming that the release of the memo would respect, what he called, the “public’s right to know.” White House Press Secretary Sarah Huckabee Sanders simply said, “We want full transparency in this process.”
My teaching and writing about secrecy in U.S. government and law suggest that these simple rhetorical appeals do not do justice to the complex interplay of transparency and secrecy in American politics.
Are the vice president and Sanders right – does the public have a right to “full transparency” about what its government does? Or are there reasonable limits?
Publicity and its limits
Public knowledge about what government officials do is essential in a representative democracy. Without such knowledge, citizens cannot make informed choices about who they want to represent them or hold public officials accountable.
Political theorists have traced arguments about publicity and democracy back to ancient Greece and Rome. Those arguments subsequently flowered in the middle of the 19th century.
For example, writing about British parliamentary democracy, the famous philosopher Jeremy Bentham urged that legislative deliberation be carried out in public. Public deliberation, in his view, would be an important factor in “constraining the members of the assembly to perform their duty” and in securing “the confidence of the people.”
Moreover, Bentham noted that “suspicion always attaches to mystery.”
Even so, Bentham did not think the public had an unqualified “right to know.” As he put it, “It is not proper to make the law of publicity absolute.” Bentham acknowledged that publicity “ought to be suspended” when informing the public would “favor the projects of an enemy.”
Well into the 20th century, the U.S. and other democracies existed with far less public transparency than Bentham advocated.
Push for transparency
The authors of a 2016 U.S. Congressional report on access to government information observed that, “Throughout the first 150 years of the federal government, access to government information does not appear to have been a major issue for the federal branches or the public.” In short, the public generally did not demand more information than the government provided.
In 1946, Congress passed the Administrative Procedures Act in reaction to the growth of regulatory agencies under the New Deal. It required agencies to publish notice of any new rules in the Federal Register and provide opportunities for the public to comment on them. In effect, the law increased public access to governmental information to a degree that would have been unthinkable earlier.
Further efforts to move government operations out of the shadows took place after a Congressional investigation revealed misuses of the nation’s system for classifying information as secret in the late 1950s and in the run up to the Vietnam War.
The most important of those efforts culminated in the passage of the Freedom of Information Act. That act granted access to federal agency records on any topic to any person. But, echoing Bentham’s concerns, the FOIA contained exceptions. It recognized areas in which the government was not required to provide information to the public. The most significant of those areas is national security.
In response to challenges to FOIA’s exceptions, courts have found that there is no constitutional or common law basis for a general public right to know of the kind that Vice President Pence asserted.
Finding a balance
For at least the last 50 years, American legal and political institutions have tried to find a balance between publicity and secrecy. The courts have identified limits to claims of executive privilege like those made by President Nixon during Watergate. Watergate also led Congress in 1978 to pass the Foreign Intelligence Surveillance Act, or FISA. That act created a special court, whose procedures were highlighted in the Nunes memo. The FISA court authorizes collection of intelligence information between foreign powers and “agents of foreign powers.”
Finding the proper balance between making information public in order to foster accountability and the government’s concern for national security is not easy. Just look to the heated debates that accompanied passage of the Patriot Act and what WikiLeaks did in 2010 when it published more than 300,000 classified U.S. Army field reports.
Americans can make little progress in resolving such debates until they can get beyond the cynical, partisan use of slogans like “the public’s right to know” and “full transparency” by President Trump’s loyalists. Now more than ever, Americans must understand how and when transparency contributes to the strength and vitality of our democratic institutions and how and when the invocation of the public’s right to know is being used to erode them.
Featured image: Wikimedia Commons
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