History’s lessons on granting secrecy to governments

By Jeremy Chen

During a March 10, 2014 sitting of Parliament, Member of Parliament for Aljunied GRC, Low Thia Khiang, said,

“Mdm, in many democratic countries with advanced social and economic development, they have what has been famously termed, the “thirty-year rule”, whereby yearly Cabinet Papers are released for public information and research, thirty years after they are created. In fact, the United Kingdom is now moving towards a twenty-year rule. In Israel, the thirty-year rule is subject to state security and foreign policy sensitivities. Mdm Chair, I am sure we are in a better position than Israel in these respects.

The principles behind the thirty-year rule, not only concern transparency and accountability to maintain public trust in the government, but also in encouraging historical investigation and writing, to foster a strong sense of national identity.”

Responding to that, Acting Minister for Culture, Community and Youth and Senior Minister of State for Ministry of Communications and Information (MCI), Lawrence Wong, countered that the Government’s approach “is not transparency for transparency’s sake”, but transparency that “leads to good governance”.

He pointed out that some countries have “gone somewhat overboard with freedom of information legislation or open access”, leading instead to the opaqueness and avoidance of records.

While Mr Wong makes hypothetical claims that transparency might cause bad outcomes, I believe the concrete facts of historical events would provide a very strong counterpoint.

To add to the discussion, I would like to describe a four decade period in the history of the United States of America (USA) where the lack of oversight on a particular powerful government agency led precisely to very bad outcomes for US citizens.

Shattering an illusion

J. Edgar Hoover was the first Director of the Federal Bureau of Investigation (FBI) of the USA, holding that position for 37 years until his death in 1972.

Over most of Hoover's tenure, the FBI carefully curated a shinning public image of dutiful law enforcement and political non-partisanship. But this pretense was shattered when files were taken from a satellite FBI office and made public via the press. (link)

The stolen material included the secret case histories of thousands of Americans. Much of it was malicious gossip about things like sexual deviance and race-­mixing, two of Hoover’s favorite subjects. More importantly, a widely circulated document revealed instructions to agents that they should work to "enhance paranoia" among targeted groups.

The burglars were never caught and some have only recently stepped forward to talk about it. They called themselves the "Citizens Commission to Investigate the FBI".

Crimes under the cover of no oversight

As copies of the stolen documents were released to journalists, Senators and Congressmen, it gradually became clear to the public how far the FBI had strayed from its jurisdiction. Statistics on the documents (revealed by the burglars) had that under 50% of the files dealt with the FBI's law enforcement mandate.

Documents revealed that Hoover was an overt racist and "Arch-conservative" explaining the precise manner in which the FBI strayed far beyond its law enforcement mandate. Furthermore, FBI documents released under a Freedom of Information Act request also revealed that diversion of FBI resources from core law enforcement to domestic surveillance gutted FBI visibility over the activities of criminal organizations.

The FBI also made active use of a network of informants on civil activist groups and some of these informants actively aided and abetted those groups in breaking the law.

The allocation of resources reflects ungrounded and "probably" politicized federal law enforcement in the USA. Lawlessness was, for a long time, part of the FBI culture. Expressions of concerns about legality of standard operating procedure could, ironically, have severe negative repercussions for a conscientious agent.

One documented case involved a 1951 case of a New York agent who expressed concerns about the constitutionality of using break ins. Washington officials were startled and ordered the New York office to determine whether that agent's "mental outlook" might be present among other agents in the break in squad and also to determine which men should be retained and which "deleted".

Lawlessness was, for a long time, part of the FBI culture. Expressions of concerns about legality of standard operating procedure could, ironically, have severe negative repercussions for a conscientious agent. One documented case involved a 1951 case of a New York agent who expressed concerns about the constitutionality of using break ins. Washington officials were startled and ordered the New York office to determine whether that agent's "mental outlook" might be present among other agents in the break in squad and also to determine which men should be retained and which "deleted".

The FBI literally broke the law in many cases, and their actions have, in cases, been far beyond the pale. Some of their actions might be rated as outrageous and ridiculous, such as their attempt to "persuade" black civil rights activist Martin Luther King Jr. to commit suicide before he was due to accept the Nobel Peace Prize.

In one of the most disturbing cases, the FBI targeted a mere supporter of the Black Panther Party, a black rights advocacy group, actress Jean Seberg. They spread a false rumour that the baby she was pregnant with was fathered by a senior Black Panther, and the stress from the rumour led her to miscarry a clearly white baby (she and her husband were white). She committed suicide some years later, unable to "deal with her nerves".

It goes without saying that the FBI engaged in coaching witnesses to perjure themselves. (See the table of contents entry for IV Conclusions of Law herefor an overview of one case where four innocents were improperly found guilty and two died in prison.)

How were all these allowed?

Before the burglary, the FBI and Hoover in particular, cultivated a shining public image while records of the private misdeeds of Congressional Representatives were carefully curated (and their existence made known to their subjects). Over the Hoover years, Congress was compliant with the wishes of Hoover, and in particular with his wish for no oversight. It was only with the release of those documents and their wide circulation that calls for oversight began to be heard.

Lessons to be learnt?

In short, acting under the knowledge that there was no oversight and the expectation that there would not be any for the foreseeable future, the FBI undermined American democracy, violated the law and subverted the American Constitution. So what lessons might we draw from this case study? I’m not exactly sure. But a few thoughts spring to mind.

J. Edgar Hoover was effective at curating a sparkling public image and his testimonies before Congress were "lovefests" with Congressmen congratulating him and telling him how valuable his leadership had been for law enforcement. This (and the hold he had over a number of Congressmen) enabled Hoover to effectively fight off the few calls for Congressional oversight.

For us, we might, with the benefit of hindsight, take away that the lack of oversight should be a smoking gun. Certainly secrecy makes sense in some cases, but the need for secrecy should be justified rigorously rather than based on hypotheticals. Furthermore, secrecy should be granted only as far as and for as long as it is unquestionably necessary.

In particular, I feel that the same principles might apply to the governance of sovereign wealth funds. Additional lessons can be drawn from the point of view of constitutional protections for citizens. But that would be straying from the point I’m trying to make on transparency. History reveals that we should be highly circumspect about granting secrecy. It is my belief that transparency should be the norm, and secrecy granted only as sparingly as possible.

(Image from Getty)