Even the Laws are Secret

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Democracy's Constitution

In his book Secrets,  Daniel Ellsberg tells a story that changed my thinking about how democracy  works (or doesn’t work) in America.  Ellsberg, who now is remembered as the Edward Snowden of the Vietnam War era, was an aide to Secretary of Defense Robert McNamara who ran the war.

One day on a flight back from a “fact-finding” trip to Vietnam, McNamara and another colleague were debating whether the situation in Vietnam had improved in the past year. McNamara argued that it had not improved; things had gotten worse. The conversation ended prematurely when the plane landed in Washington, D.C.  McNamara deplaned and strode up to the microphone to address the press:

“Gentlemen, I’ve just come back from Vietnam, and I’m glad to be able to tell  you that we’re showing great progress in every dimension of our effort.  I’m very encouraged by everything I’ve seen and heard on my trip.”  (Ellsbeg, Secrets, 141-42).

Here we have not only disinformation fed to  the press, but a practice so ingrained that it does not appear that McNamara had any qualms about  the difference between his messages to his aides and to the press.  You have to be candid with your aides so they will be candid with you.  The press you only tell what you want them to hear.  I wonder whether  a government that routinely misinforms  its citizens can fairly be termed a democracy.

All the history we know of American foreign policy since 9/11 supports the belief that the McNamara “rules” are still operative.  (I give numerous examples in my book Freeing Speech (2010).)  So what can a democrat do? We have to  find a way to discourage high government officials from intentionally misleading us on issues relevant to our role as voters.

Justice Louis Brandeis once said that “sunshine is the best disinfectant.” Luckily the American Civil Liberties Union (ACLU) is putting this philosophy into practice by using the Freedom of Information Act (FOIA) to require that government agencies disclose the true facts behind government words.  Much of what we know  of the CIA’s secret torture programs after 9/11 came from successful ACLU FOIA litigation.  FOIA has become an important weapon to implement democratic values because it prevents the government secrecy that enables official disinformation.  Officials are reluctant to make false statements that can easily be shown to be false.

A new ACLU lawsuit involves  President Obama’s use of drones to kill alleged terrorists.  Thousands of people, many children, have died from drone strikes, but still there is no clarity about the legal sources that authorize the strikes or the standards that control when strikes are lawful and who can be  targeted.  Here is a link to a story describing the lawsuit. http://www.huffingtonpost.com/2013/03/22/aclu-drones_n_2926785.html

The ACLU lawsuit dramatizes the contrast between the secrecy that protects the program and the propaganda that justifies it.  In his State of the Union address, Obama promised to make drone targeting “more transparent to the American people” because “in a democracy no one should just take my word for it that we are doing things the right way.”  But while “transparency” is the slogan, “stonewalling” is the reality.

The Administration continues to fight to keep secret the information that would allow  Americans to make an informed decision about whether the drone program is lawful and effective.  Most alarming to me is the argument that national security somehow prevents the government from telling its citizens the source of legal authority for its programs.  We now live in a society where even the laws are secret.


  1. “Stonewalling” is an apt metaphor. But perhaps “cloak” (for secrecy) and “dagger” (for the drones) may be on target, too.



  2. David Fielding says

    Bravo commentary, Jake.  Makes me want to read “Secrets” . . . if I can handle the disillusionment it would bring down on my aging and cynical mind. Gui


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