Several events in recent months bring back to the forefront the perennial assertion that, on grounds of both efficacy and ethics, the public’s "right to know" is the best guide to good government and good institutions. Indeed, the Obama administration prominently displays on the White House’s Web site a presidential memorandum: "MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
"SUBJECT: Transparency and Open Government
"My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government."
Former Supreme Court Justice Louis Brandeis gave impetus to this reasonable proposition with his observation that "sunlight (on public policy matters) is the best disinfectant" against corruption. Perhaps ironically, Brandeis also is credited with being the father of the constitutional "right of privacy" as it applies to individuals.
But, of course, some publicly held information should not be disclosed (e.g., the military’s nuclear secrets), while some private information should be open to public view (e.g., evidence of individuals’ criminal conduct).
While it may be justified for the government to have — as a general default — policy regarding the public’s right to have routine information disclosed (see the Freedom of Information Act), in any particular factual setting, the principle of "right to know," or "transparency," is not much of a guide.
Consider four recent controversial events:
1. The advanced announcement of the bank "stress tests" by the Treasury Department.
2. The non-disclosure at the time of the Henry Paulson/Ben Bernanke "threat" to fire Bank of America’s CEO, Ken Lewis, if he didn’t complete Bank of America’s purchase of Merrill Lynch.
3. The release of the terrorist interrogation memorandums.
4. Secretary of State Hillary Clinton’s public disclosure that the U.S. government considers the possible fall of Pakistan’s government to the Taliban as a "mortal threat" to the U.S.
Each of those disclosure/non-disclosure decisions has been sharply contested. And in none of them is the general principle of transparency a useful guide.
In the first instance, most financial experts and commentators have argued that the level of public and market cynicism is so high that if the government says the banks passed, it won’t be believed and that if it flunks a bank, some will suspect that bank is a scapegoat offered up to try to convince the public that the tests were legitimate. This problem was compounded by the fact that the government announced the tests but said it would not release individual data. However, when pressured, the government has released information publicly on a slow-motion basis.
A pretty strong case could be made that transparency was a mistake from the start on these stress tests. The Treasury could have run the tests privately and then publicly taken whatever actions the tests indicated were necessary.
In the second instance, Paulson (and Lewis) are being criticized fiercely for arguably violating the law that required disclosure of Merrill Lynch’s perilous condition to Bank of America’s shareholders and the public. Offsetting that transparency argument is the (to me, convincing) point that if the public knew how bad the financial conditions were at the time, the world might have suffered an even graver economic meltdown than we are in the process of enduring.
The third — and currently the most furiously contested — disclosure decision is the release of the interrogation memorandums. My point here is not to argue the merits in detail. (As I have said elsewhere, I am emphatically with most intelligence experts and, according to the Rasmussen poll, the majority of the public in opposing the decision to release the memorandums.)
Rather, it is clear that with the country harshly divided, the decision’s supporters’ merely pointing to the general principle of transparency and the public’s right to know makes a woefully insufficient argument. Yet the public’s "right to know" has been the weak foundation of the argument — even against the obvious, specific harm that was done.
Finally, was Secretary of State Clinton wise to reveal publicly that if Pakistan goes Taliban, it is a "mortal threat" to America, which, I assume, is a serious State Department assessment? As a matter of judgment, as I wrote in this space a few weeks ago, a nuclear "Talibanistan" would be shockingly dangerous to us and the world. But for the secretary of state to call an eventuality a "mortal threat" — a phrase I cannot remember being used by a high official — at the same time that the administration is on background admitting that its options are limited creates the worst of conditions. If we are not prepared to block a mortal threat to our nation, we look to the world as a hapless giant.
The gravity of the situation could have been alluded to without revealing that private government assessment, which makes us look weak and foolish by our subsequent inaction.
In these and so many other critical government decisions, often the more important "right" may well be the public’s "right" not to know.