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21 November 2013

When states keep secrets, who decides which ones are worth keeping?

And why does it matter if Edward Snowden is a hero or a narcissist?

By katrina forrester

Secrets and Leaks:
the Dilemmas of State Secrecy
Rahul Sagar
Princeton, 304pp, £27.95

When states keep secrets, who decides which ones are worth keeping? This is one of the questions that underpinned the recent parliamentary debate about oversight of the security services, following Edward Snowden’s NSA revelations. The conventional answer is that the executive decides – which in the US means the presidency.

In his 1973 book, The Imperial Presidency, the American historian Arthur Schlesinger argued that the executive had grown too powerful and the “secrecy system” it oversaw had become bloated and dangerous. The American constitution had outlined a set of checks and balances to limit the secret-keeping power of the executive, but over the course of the 20th century, as the US fought more wars and secrecy became more central to national security, practice departed from principle. Open government was replaced by a lying, dissembling executive branch that sought to “bury its mistakes, manipulate its citizens and maximize its power”. How could this process be reversed? Congressional and judicial oversight was needed to reign in the president. Transparency could then once again trump secrecy.

In this timely study, the political theorist Rahul Sagar argues that this solution is too simple. It gets the history wrong: the American government was never as open as the story of decline suggests. And it gets the politics wrong, too. Institutional mechanisms for monitoring state secrecy just don’t work.

Take an example: the rotation of officials. When a new president is elected, new officials accompany him to office. The idea is that they will have different priorities to their predecessors and will therefore be more likely to expose past wrongdoing. But coverups work to the advantage of those in power, even when they cut across party lines: revelations of abuses of power lead to calls for more oversight, which then tie the hands of the new government. So, state officials can’t be trusted to enforce transparency. Judges and lawmakers can’t be relied on either. Both are too deferential to the executive and easily captured by special interests. Sagar shows persuasively that we cannot trust institutions to “watch the watchers”. We must instead rely on the “virtues and vices” of individuals.

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Sagar’s thesis is that if we want a credible way to monitor state secrecy and control the “overclassification” of secrets, there is no better way than whistleblowing. He defines whistleblowing as a kind of “unauthorised disclosure” – the public version of “leaking”. Leakers disclose information anonymously. Too many leaks create a paranoid political culture and provide conspiracy theorists with ammunition: if secret information is made public anonymously, everything that was secret looks like a conspiracy; it becomes hard to separate the cover-ups of embarrassing mistakes and the concealment of minor abuses from real conspiracies.

Whistleblowing avoids this extra layer of secrecy. When done right, it is a kind of justifiable civil disobedience, which provides a way of striking the balance between secrecy and transparency that democracy requires. But according to Sagar, whistleblowers can also be a threat to democracy. They are not accountable representatives but private individuals, acting in their own interest. And they can have poor judgement, seeing abuses and conspiracies where there are none and threatening national security as a result.

Despite these costs, Sagar thinks whistleblowing is the best mechanism we have to monitor state secrecy. The tone of his book is pessimistic: the problems of secrecy in a democracy are intractable; the tensions between security, liberty and privacy can’t be resolved. But Sagar does set out in detail what it would mean to get whistleblowing right. The ideal whistleblower would be cautious, first contacting their boss and only later going to the press. On rare occasions, where the information that whistleblowers disclose highlights “gross wrongdoing” and a catastrophic abuse of power, the disclosure of which is patently in the public interest, they wouldn’t need to reveal their identity.

Sagar’s example is Abu Ghraib. Most of the time, however, the disclosure is of “suspected” not “gross” wrongdoing. In standard cases, an assessment of the whistleblowers’ intentions is required. The public must be able to examine their motives and ensure they are acting in “good faith” – they must not be partisan, driven by morality, politics or revenge. They should be “disinterested”.

This is a strange argument. Sagar’s critique of institutional oversight shows a clearsighted realism about state power and national security. But if Abu Ghraib is the standard for gross wrongdoing, then his scheme doesn’t allow for the many other kinds of wrongs that states commit and conceal – notably the NSA’s surveillance programme. His picture of the surveillance state is far too rosy. But his focus on intentions is the real red herring, and his preoccupation with “good faith” whistleblowers too moralistic.

Why does it matter if Edward Snowden is a hero or a narcissist? What’s important is what whistleblowers uncover, the insights into the hidden workings of state secrecy they give that a government committee never could. Focusing on the personality of individuals fixes the terms of the argument so that the whistleblower can never win. It is a gift to conservative defenders of surveillance that lets the state off the hook.

Katrina Forrester is research fellow in the history of political thought at St John’s College, Cambridge