- The Washington Times - Tuesday, April 28, 2009


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 Web site a presidential memorandum that starts: “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 … .”

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. nuclear military secrets), while some private information should be open to public view (e.g. evidence of individual criminal conduct).

While it may be justified for the government to have as a general default policy regarding routine information the public’s right to disclosure (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) Advance announcement of the bank “stress tests” by the Treasury Department.

(2) Nondisclosure at the time of the Henry M. Paulson/Ben S. Bernanke threat to fire Bank of America Chief Executive Officer Ken Lewis if he didn’t complete the Bank of America purchase of Merrill Lynch.

(3) Release of the terrorist interrogation memorandums.

(4) Secretary of State Hillary Rodham Clinton’s public disclosure that the U.S. government considers the possible fall of the Pakistani government to the Taliban a “mortal threat” to the United States.

Each of those disclosure/nondisclosure 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 if it flunks a bank, some will suspect that bank is a scapegoat offered up to try to convince the public that the test was legitimate.

This problem was compounded by the fact that the government first announced the tests but said it would not release individual data. However, when pressured, the government has been publicly releasing information 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 privately run the tests and then publicly taken whatever actions the tests indicated.

In the second instance, former Treasury Secretary Paulson (and Mr. Lewis) are being criticized fiercely for arguably violating the law that requires disclosure of Merrill Lynch’s perilous condition to Bank of America shareholders and the public.

Offsetting that transparency argument was 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, a majority of the public in opposing the decision to release the memorandums.)

Rather, it is clear that with the country harshly divided, for the supporters of the decision merely to point to the general principle of transparency and the public’s right to know makes a woefully insufficient argument.

And 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 Mrs. Clinton wise to publicly reveal what I assume is a serious State Department assessment that if Pakistan goes Taliban it is a “mortal threat” to America?

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 the private government assessment that makes us look weak and foolish by our subsequent inaction.

In these, and so many critical government decisions, often the more important right may well be the public’s “right” not to know.

Tony Blankley is the author of “American Grit: What It Will Take to Survive and Win in the 21st Century” and vice president of the Edelman public relations firm in Washington.

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