Eric Posner on Rahul Sagar's "Secrets and Leaks"

Before You Reboot the NSA, Think About This
Eric Posner
The New Republic
November 6, 2013

The government classifies too much information. It comes down too hard on leakers and whistle-blowers such as Chelsea Manning and Edward Snowden. It has launched an unprecedented “war on the press” by subpoenaing records of journalists and threatening to jail them if they do not reveal their sources. As a result, Americans do not know what the government is doing, and thus cannot exercise control over elected officials, as is required by democracy. These efforts by government officials to protect themselves from government accountability must be stopped. And it would not be hard to do so. Certain information, such as troop movements, should perhaps be kept secret, but most information—such as the nature of surveillance programs—need not be. To ensure that the government does not classify too much information, there should be vigorous congressional oversight of secret executive-branch activities, and also judicial review. Executive privilege, the state secrecy privilege, and the classification system can all be cut back with little or no harm to national security and immense benefits to democracy. Whistle-blowers should not be prosecuted when they mean well and disclose wrongdoing. The Founders themselves understood the risk of abuse of secrecy by government and responded to it by designing a constitutional system that subjects the executive to the oversight of Congress and the judiciary.

It would be hard to overstate the conviction with which nearly all members of the intelligentsia—journalists, pundits, university professors—hold the views stated above. They are repeated every day. But are they true? In his new book, Rahul Sagar suggests not.

The Founders were practical men, and they understood that the government requires secrecy in order to function, especially in foreign affairs. Foreign affairs powers were given to the executive branch because the Founders believed that it would be better able to keep secrets than Congress—a multi-membered body, where political divisions would lead to leaks, and responsibility could never be clearly located. It seems to follow from this view that congressional oversight of the executive branch must be limited. After all, if the executive were required to reveal its secrets to Congress, and Congress leaks, then the executive would not be able to keep secrets. Yet the Founders also gave significant foreign affairs powers to the Senate, and expected the Senate to put a check on the president. They never explained how the Senate could perform this checking power if it was not privy to the executive’s secrets. Maybe they believed that the Senate, at the time a small body, could keep secrets and work with the president, but events—going all the way back to George Washington, who learned that Senate participation could only disrupt treaty negotiations—have falsified their expectations. Thus, no one—neither the government nor its critics—can take much comfort from the wisdom of the Founders.

Eric Posner