Democracy can’t function without secrecy

“The right to know” is a trope so often repeated, it may come as a surprise that the Constitution mentions no such right. That omission is hardly surprising given the circumstances in which the Constitution was drafted in 1787—with doors and windows closed even in the stifling summer heat to prevent deliberations from being overheard, and with the delegates sworn to secrecy. Although the Constitution directs the chambers of Congress to keep and publish a journal of their proceedings, it excepts from the publication requirement “such Parts as may in their Judgment require Secrecy.”

The choice to disclose matters that public officials have determined should remain secret is often a singularly antidemocratic act. Public officials are elected—or appointed by those elected—to pursue policies for which they answer to the voters at large. Those who disclose national secrets assert a right to override these democratic outcomes.

There are also criminal statutes that bear on such disclosures. Debate over high-profile missteps—David Petraeus and Hillary Clinton come to mind—has made those laws familiar. They range from the misdemeanor of putting classified information in a nonsecure location, to felony statutes carrying penalties up to 10 years for disclosing classified information about communications activities of the United States, such as surveillance of foreign diplomats.