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In Defense of Secrecy

Author: Noah Feldman
February 10, 2009
New York Times Magazine


Given the pervasive secrecy of the Bush-Cheney administration, and the sorry consequences of that disposition, President Barack Obama's early emphasis on openness in government seems almost inevitable. One of the first official communications issued by the new administration, on Jan. 21, ordered government agencies to adopt a presumption in favor of disclosure when responding to Freedom of Information Act (FOIA) requests and called for new FOIA guidelines to replace those promulgated under Bush. A later directive instructed the heads of all government agencies to strive for "transparency and open government." Ornamenting the first order was a quotation from the great progressive reformer Justice Louis Brandeis: "Sunlight is said to be the best of disinfectants."

There is something charming about Obama's reference to his fellow Harvard Law School graduate, right down to the fussy, lawyerly precision of the exact quote, which is often rendered more straightforwardly as "sunlight is the best disinfectant." And Obama's instinct for candor and openness is certainly a refreshing change from the shadowy practices of the last administration. At the same time, Brandeis's metaphor, based on a medical theory now long refuted (alcohol is a much better disinfectant), can be taken too far. The effective operation of even the most democratic government requires secrecy and surprise as well as transparency and predictability.

On the surface, it might seem that more and better information about the government's decisions (and decision-making processes) is always preferable, especially if the information is provided before events transpire.

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