Democratic participation when most information is government secrets

This post is a reflection on the recent news of the release of the Nunes FISA memo to the public.   In particular, the underlying discussion about whether public release of this type of summary information is contrary to a democracy, or to the specific constitutional government of the USA.   My observation is that if we still have a democratic republic, the democratic participation is restricted to those who have access to government secrets.   For the voting population, government is a spectator sport where the only participation is choosing which team to support.

The memo itself is summarized from more detailed investigations.   Because these investigations included classified information, the summary derived from this data would also be classified.   The public release of this information required formal processes to declassify the summary.    The summary itself lacks information that can expose more detailed secrets.   This provides the opportunity to declassify the information and the opportunity for criticism about the information being misleading and omitting exculpatory information that remains classified.

This discussion exposes a fact of the modern government.   This is a government that denies detailed information to the eligible voters in elections.   The voting public does not have a right to view the documented information used for making important government decisions.   This information is protected with classification as government secrets.  These secrets are available only to government employees or approved contractors whose permissions need access to this information and whose persons have sufficient background investigation to be trusted with protecting these secrets.

In this case, the secrets concern the decision process for the investigation and surveillance of persons engaging in behaviors sufficiently suspicious to justify that investigation.   To be effective, such an investigation should be done in secrecy.   The secrecy permits collecting of information without alerting the target.   On the other hand, the secrecy keeps this information out of reach of the target’s adversaries who can damage the target’s reputation and livelihood with the evidence of the mere fact that the target is under investigation.    This is an example of information that should be kept secrets from the general voting public because there is no way to share this information without having this information reach the person under investigation, or his adversaries.

The FISA process has the goal of protecting the country from external actors who want to harm the country and in particular in ways that will harm individuals and their property.   These are credible threats both in terms of adversaries willing to carry them out, and the extent of injury and damage that is possible in the modern environment.

The needs for secrecy in this process is parallel with the needs for military secrecy that hides from adversaries the extent of our capabilities, the areas of vulnerability, as well as the plans and immediate deployments.    There is no way to share this information with the general voting public while excluding access to this information from the adversaries.

Government secrets extend to other areas of government.   For example, the deliberations involving government contracts also need secrecy from the public in order to assure fair competition.    Similarly, deliberations of new regulations need to be secretive.   Both processes have very well managed periods for public interaction whether to offer proposals in the first instance, or to offer constructive criticism in the second instance.

A significant part of the operation of the current government requires restricting access to information.    In particular, this restriction disqualifies the general voting public from accessing this information except for specific periods allowing public access to just a subset of the information the government determines is sufficient for public discussion.

It is easy to argue for the necessity and justification for this secrecy.   Most government operations requires certain information to be kept secret from the public.   Only people with appropriate security clearances can access this non-public information.  Security clearances require successful background investigations plus commitments to keep information secret under penalty of fines or imprisonment for unauthorized disclosure (though apparently many exceptions exist).

My observation is that security clearances are available only to government employees or contractors.    It is not possible for someone in public with no connection to the government to obtain a security clearance and approval to directly access critical information related to current government operations.    There is a mechanism for public release of information through the freedom of information act, but this is almost always concerning historic information related to past decisions.   Even if FOIA requests involve data relevant for current decision-making, the process will delay the release of information to be after it can be relevant for influencing that decision.

Government secrets need to be restricted exclusively government insiders who have certification of public trust.    Compared with publicly available information, this secret data has much higher influence on decision-making and overall governance.   Whether that governance is in the form of legislation, regulations, or rulings, the public will get access to on a summary of the information backing it up.

That public summary will exclude specific details that support the decision as well as information that the government determined was irrelevant to the decision.    The implicit assumption is that the public would come to the same conclusion as to the wisdom of the government decision if they had access to all of the information available to the government.   The only reason to keep this detailed information secret is to protect the government’s mission.

In other words, the public’s opinion on the decision would not change if they considered this information at least as fully as those who were paid to consider this information in the decision.

Implicit in this assumption is that democratic processes are irrelevant.   So long as we select qualified people to work for government and certify that they are worthy of public trust, democracy is not needed for the substantive process of determining specific laws governing our lives or charting our future.

We still have periodic voting, but this process lacks any direct control over the specific policies.   Historically, we elected representative who we entrusted would represent the majority views of the constituents.   I’m not sure how well that has ever worked, but I don’t think this is how it works today.   If it did work that way, we would not see so many straight-party line votes both in legislation and in judiciary.   In most cases, a representative will cast a vote purely consistent with the national party direction, with no variation for the different constituencies involved.

Perhaps there is democratic consistency in the votes where the local constituency choice of party equates to complete agreement with the national platform (or leadership) of one of the two national parties.    I don’t see that occurring.   I see representatives casting party-line votes where the specific vote may be supported by a small minority of the local constituency.

There is a conflict between the ideals of democratic government (or even a democratic republic) and the nature of the government that requires restricting most of the relevant information to a small population that the government both employs and approves as being trusted with classified information.

An alternative view goes back to earlier ideals of democracy where the voting was restricted to a sub-population.   Most people living in a territory would be disqualified from the vote, and thus to participation in government, unless they met certain criteria such as land-ownership in early USA.    Today’s democracy replaces the land-ownership requirement with the requirement of qualifying for an opening in government and obtaining an appropriate clearance to access information.

This is still a type of democracy because access to jobs in government are accessible to everyone provided they have competencies for the opening, and a background justifying trust for handling classified information, including low level classifications such as FOUO (for official use only) or SBU (sensitive but unclassified).

The current government is a democracy where the voters are exclusively those who have security clearances and those are primarily restricted to government employees and government contractors.   People from the general population is eligible to join these voters although in practice the majority comes from the Urban Northeast or having college educations from a small number of schools.

Security-clearance holders make up the democracy in context of having direct influence on each specific legislation, regulation, or ruling.   The same individual may decide cases individually based on the merits of the case because he has sufficient information to non-public information.   While government bureaucrats may have political biases, they need to use the non-public information to defend their decisions from competitors with access to the same information.   In most cases, a bureaucrat who neglects or misuses the nonpublic information will lose the argument or may even lose his position of influence on that particular area.

A democratic voting base is that population who has the ability to influence specific government decisions individually.    A democratic republic would transfer that direct influence to the representatives.    To the extent either of these exist today, that voting base is restricted to government bureaucrats with access to non-public information.   Further evidence of bureaucrats being the true base of democracy is that they are largely independent of both the executive and and the legislative branch.

While the executive and legislative branches have a right to view the non-public information of the bureaucracies, these branches must formally request this data very specifically and the result is subject to redactions that the bureaucrats do not consider relevant to the request.   In particular, the supplied information redacts specific identification of individual bureaucrats involved, consistent with the ideas of secret ballots in a democracy.

We still maintain the pretense of wider democracy with voting rights extended to the entire adult population where the primary qualification is some proof of residency and citizenship.   There is no need for language comprehension of specialized topics or for trust in handling non-public information because that information will never be provided to them.

Intrinsically, this low level qualification of voters limits the nature of questions we ask these voters to decide.   Over time this limitation is reduced to choosing a team either directly such a straight-party tickets, or indirectly through a specific representative who will follow party-line votes in all but the most exceptional cases.

The limited role of the actual voting population plays a large part in the increasing divisiveness of modern politics.   Most people’s participation in politics is simply whether their side wins over the other side.   What matters is what side wins, or in compromise situations which side gets the better deal.

The public is not able to influence the details of the topic.   They don’t have access to the critical information that backs up the option being presented.   Frequently, the topic is comprehensive in nature such as the consolidated annual budget or large initiatives such as the affordable care act.  A large number of separate decisions is presented as a single up-or-down vote.    Each component decision involves distinct trade-offs of non-public information.    The public’s representative is reduced to a single choice of an up-or-down vote on the entire package.  His best and often only option is to vote consistent with the party-line.

Consequently, the public’s only voting option reduces to a very broad choice of what general direction to follow.   There choice is restricted to only the few (and often just two) choices offered.   The voter is unable to influence government in favor of his personal priorities.   Even if one of the ballot choices has some similarity with his objectives, the vote has very little influence on the subsequent decision making of large scale compromise legislation that frequently defers the specific decisions to the bureaucrats who have the non-public information.

The current government bureaucrats are the model of democratic participation in government.   In particular, they have access to the essential information that is relevant to specific government decisions, whether that is legislation, regulation, or rulings.

A proposed reform is to expand the access to non-public to non-bureaucrats, to people who are not employed by the government or its contractors, or who do not have an unpaid government position.   The rules for security clearance will remain: the person will have to pass the full background investigation and sign binding agreements to protect the information.   However, the expectation changes to one where we expect the majority of the US population to qualify for even the highest clearances.

There should be a right, possibly guaranteed by a new constitutional amendment, to apply for clearance to access government secrets, with an guarantee of equality in the assessment of this qualification.    In particular, it should be as easy for any citizen to obtain high-level clearance as it would be for any government employee or contractor with similar background.    The government will bear the cost of the background investigation, and this cost can come down with better access to modern data integration.

This broader population of people with approved access to non-public information would have the right to participate in debates about public policies or individual actions.   They will have access to the information needed to provide compelling arguments or to confront contrary arguments.

Such a model would have provided a different option for the recent release of the Nune FISA memo.   The released information could have been broader than the brief summary and it could be debated outside of the government.    The debate would be restricted to the subset of the public who have appropriate clearances and agree to keep the information from people who don’t have that clearance.

The benefit would be that the debate would involve a much larger population than the 535 congressmen.   They would have access to much more information to make better decisions about what may have occurred and what may need to be done in the future.

Being a much larger population, these cleared people can influence their friends, family, coworkers, neighbors, etc with their conclusions without giving away the secret information.  If we continue our current election model, this influence can help to break down the divisions caused by having only two choices on the ballot.   With this model, most people will have multiple acquaintances who have access to non-public information.   There will be conflicting views, but these views will come from people they know personally and can come to some decision on their own as to who they trust the most.   The ballots may still have just two party choices, but these voters will be better informed on the positions because they will personally know people who have seen the non-public information if they don’t have that privilege themselves.

The current election process with general population voters (qualified simply be residence and citizenship) can be supplemented with a different election process where eligible voters are restricted to those cleared to view non-public information.   These may be in the form of approving or vetoing new legislation, regulation, or rulings, or offering amendments to these prior to the up-or-down votes by the congress or by the various bureaucracies.   Such participation may require some proof of substantial participation in the process.

Any person interested in getting involved with a debate within government, he should be allowed to participate with full access to non-public information and with ability to influence the final results.   The only qualification for participation is the obtaining of a certification that he is trusted to access the relevant non-public information.   In terms of access to non-public information, such persons would be peers with the government employees, contractors, or office-holders.   They will be able to discuss the information without the need to declassify the information for general public.

If such a model were in place today, the current debates about the Nunes FISA memo would be much more muted, and perhaps resolved more equitably.   People outside of government, and thus outside obligations to party affiliation will be able to assess the case and come up with their own conclusion as to whether something like the released memo needs to be released to the general voting population.    This will replace the couple hundred party-affiliated congressmen with perhaps hundreds of thousands if not millions of interested parties to review and discuss the relevant information without disclosing the information to the wider public.    A consensus arising out of that discussion is less likely to be divisive because the vast majority of participants will not be directly affiliated with the party, or have as intense party-coherence obligations as the elected congressmen.

Modern data technologies make possible such an evolution in democratic processes.   Modern data collection and analytics can streamline the background investigation for accessing non-public information.   Once cleared, people will be able securely access the information and share their observations with cleared peers without the need for declassifying the information.    This may require special software and hardware to safeguard this information, or it may require people going to specific secure locations hosting secure terminals.   Eventually, this will be reasonably convenient for the interested population, but the primary proposal is to permit non-government people to access non-public information.   It may be inconvenient, but it is not forbidden the way it is today where only government people can obtain such clearances.

In short, the proposal is to separate security clearances from government employment or contracting.   Allow citizens outside of government obtain clearance to view and comment on non-public information.   They would then be able to participate in discussions about this data prior to or instead of releasing this information to the general public.   The broader participation of millions of people across the country in this debate would allow the topic to be more thoroughly evaluated on the merits and less influenced by party-loyalties.   I suspect such a model would resolve the controversy quicker and with less divisiveness caused by public debate lead by a few representatives from each party.

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