Government secrets — continued

One of the concerns is the embarrassment of disclosing the deliberative part of governance. Lord Claremont wrote in 1640 that it would be wrong for government officials to be embarrassed by brash or inconsiderate comments. Free informal expressions of ideas would be inhibited, debate stifled, independent thought chilled. As a former government lawyer (in the Air Force and at the Justice Department in the Kennedy administration), I’d have been shocked if inside brainstorming sessions became public. Our public actions and comments, of course, would be open to public examination.

The Nixon tapes made the distinction clear between criminal conversations within the executive branch and ordinary pre-decisional communications. The arguments before the Supreme Court and its decisions are clearly public — the justices’ prior deliberations should not be, Bob Woodward’s The Brothers notwithstanding. In diplomatic work, 99 percent is pre-decisional, which raises unique questions of line drawing between what should and should not be kept secret.

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So far, the WikiLeaks made public do not distinguish between deliberative (most published so far are) and public actions of diplomatic officials. While Wiki’s leader, Julian Assange, seems to be a poor choice of champion of open government, major reputable press organizations like The New York Times agreed that most of Wiki’s leaks deserved publication.

Wiki’s disclosures raise an important point. Why was so much of this haul of document classified in the first instance? That question — the overclassification of government documents — is the next blog in this series.


Ronald Goldfarb, attorney, and author of IN CONFIDENCE—When To Protect Secrecy And When To Require Disclosure.

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