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January 30, 2003

Democracies and Their Spies

Are secrecy and democracy inherently incompatible? Not necessarily. By Hoover fellow Bruce Berkowitz.

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Are secret intelligence operations compatible with democracy? Or is secret intelligence a necessary evil that democracies must tolerate in order to survive in a hostile world?

Even today there are some officials and scholars who argue that democracy is fundamentally incompatible with intelligence. Even some advocates of a strong intelligence community accept this argument. Such assertions are common but are rarely subjected to rigorous analysis. To answer the question, we borrow a few ideas from political economy and address three issues: (1) What are the essential features of democracy? (2) What are the essential features of an effective intelligence organization? (3) If intelligence operations do require special restrictions on the democratic process, are they significantly different from other accommodations we make in democracies?

What one finds is that the accommodations in the democratic process necessary to run an effective intelligence community consist mainly of two kinds: restrictions on participation in decision making and restrictions on information. One also discovers, however, that such restrictions are not unique to intelligence. Other kinds of government activities require similar restrictions. Indeed, such concessions are routine and often occur as a natural by-product of democratic politics.

This is important because it suggests that intelligence is not a “necessary evil” that democracies must engage in. Intelligence policies are not fundamentally different from other kinds of policies, and intelligence operations are not inherently different from other kinds of operations democracies carry out.

The real issue is how intelligence policies are made. It is possible to construct rules that meet the special needs of effective intelligence but that impose restrictions on information and participation that are not much different from restrictions one finds elsewhere in democratic governments.

Necessary Conditions for Democracy

The most important requirement for a government to be democratic is that it hold fair elections. Ideally, elections should be held at predictable intervals and all adult citizens should have the right to vote (with the possible exception of, say, convicted felons and those who are mentally incompetent).

Voting is fundamental to democracy because it is the main mechanism through which citizens can influence the actions of their government. Petitions, public demonstrations, and lobbying are also important. But what gives all these other tools weight is the ability of citizens to replace current officials with people who will carry out different policies.

Many political rights linked to democratic government are closely linked to the ability to conduct fair elections. For example, free speech allows candidates to offer alternative platforms for voters to consider. Similarly, transparency (the idea that policies should be made in public) allows voters to link officials to their actions so they can decide whether to vote for those officials in the future. And so on.

But to understand fully why voting is important to democratic government, one first must understand why democracy is desirable in the first place. As the late political scientist William Riker observed in his book Liberalism against Populism, democracy can guarantee only two things: (1) that voters dissatisfied with current policies will have an opportunity to propose an alternative at some certain time in the future and (2) that representatives of different political views will have a chance to compete in fair elections. That’s the primary benefit of democracy: It prevents bad policies from getting locked into place and promotes the free flow of information that is essential for this process to work. In a democracy, citizens can always organize, mobilize, and bargain—that is, use information—so that, in time, they can replace the status quo with something else.

This might sound like a weak argument for democracy, but it is a landmark in the development of civilization. Any citizen has a chance to peacefully change government policies, decreasing the likelihood of war or revolution. The democratic process also makes it possible for a society to draw on a deep, broad reservoir for new ideas.

Necessary Conditions for Effective Intelligence

On the other hand, once one begins to toss around terms like free expression and transparency—necessary conditions for democratic government to work—one starts to sense why intelligence might be incompatible with democracy. Before leaping to that conclusion, though, one must first think more rigorously about what conditions are necessary for effective intelligence.

Although people often use the term casually, intelligence is different from the other kinds of information used by policymakers, warmakers, peacemakers, and other officials. At least two properties make intelligence different from ordinary information: scarcity and exclusivity. Intelligence is not free for the taking nor is it in unlimited supply. Rather, intelligence is usually hard to come by because it is costly to collect or difficult to analyze and because often your opponent does not want you to have it. In addition to its scarcity, the exclusivity of intelligence means that an intelligence consumer can keep others from having it by controlling its distribution.

Scarcity and exclusivity not only define intelligence but are essential for its effectiveness. The goal of intelligence is to obtain an advantage over your adversary—to stay one step ahead of him—so that you can elude, evade, defeat, or kill him.

Like most important concepts, the idea of an “information advantage” has a variety of roots. In part, the idea comes from organization and management theory. But the military use of the concept is often attributed to John Boyd, an American fighter pilot. Boyd described a decision he called the “OODA loop” for the four steps it incorporates: observe, orientate, decide, and act. Boyd is something of a cult figure among many military thinkers, and his ideas have been incorporated into American military doctrine. Today, getting to the end of your decision loop is more important than ever because weapons are so deadly that whoever gets to the end of his or her decision loop first wins. Intelligence is one of the most important means for achieving this.

Thus, for intelligence to be effective it must be not only timely and accurate but more timely and accurate than whatever your adversary has. Universally available information puts everyone on a level playing field, but intelligence tilts the field in your favor.

This is why intelligence requires secrecy. Intelligence is valuable because of the advantage it offers, and secrecy is often necessary to protect that advantage.

Now the challenge of operating an intelligence organization in a democracy becomes clear: Voting is essential for democracy; freedom of information is essential for voting; but free-flowing information defeats the functions of intelligence. Or, to put it another way, information is the engine that makes democracy work, whereas the effectiveness of intelligence depends on restricting the flow of information.

Secrecy and Democracy

Can a government impose the secrecy that intelligence requires and still legitimately claim to be a democracy? One way to address this question is to ask how much secrecy usually exists in a democracy.

In fact, secrecy is more common in democratic governments than one might think. Indeed, some of this secrecy is necessary for democracies to function.

Direct popular democracy is rare, especially at the level of the federal government. The most obvious reason, of course, is that national referenda are usually impractical in the modern state. There are too many people and too many issues to be decided. Yet, even if it were possible to overcome these mechanical and logistic hurdles, almost all democracies would still have segmented, indirect democracy. A natural tendency in all democracies is for people to organize themselves into groups for mutual advantage, such as political parties. In addition to parties, there are also political action committees, lobbying groups, campaign organizations, trade unions, and industry and professional organizations. A similar process occurs in most legislative bodies: Every parliament and congress in a functioning democracy has caucuses and coalitions.

As a result, democracy almost always consists of a multistep process, and the bodies that exist at every step have the potential to control information—and many of them do. Political campaigns plan strategies in secret; in the United States, in fact, there have been several scandals in which one party or candidate stole confidential planning papers from his or her opponent. Legislative committees often meet in closed session, as do party caucuses. Similarly, within the executive branch, most cabinet meetings are closed to the public. Departments and agencies often operate in private, except in the case of public hearings. Contractors often negotiate agreements with government agencies in private to protect intellectual property. In the Supreme Court, the only parts of a proceeding that are held in public are the oral arguments.

In fact, left to their own devices, participants in the democratic process choose secrecy at least as often as they choose openness. That is why many state assemblies in the United States have passed “government in the sunshine” legislation and why, at the federal level, Congress passed the Freedom of Information Act.

People often accept secrecy because they believe in many cases that a person’s right to privacy trumps the public’s right to know. In some cases, secrecy is necessary because government administration would otherwise be too chaotic. In yet other cases, there is general agreement that parties or candidates should be allowed to plan and organize in secret. But does this secrecy destroy the democratic process? In most of these cases, people agree that they can tolerate considerable amounts of secrecy without violating the democratic process too much—assuming that certain conditions are met. This suggests that the secrecy that intelligence requires is not unique, that secrecy is often tolerated as part of government and politics. Moreover, secrecy in itself is not inherently incompatible with democratic government. There are many ways to control the impact of secrecy on democracy. The key question is how to limit the effects of secrecy, which brings us back to why democracy is a desirable form of government.

If we assume that the purpose of democracy is simply to allow citizens to cause their government to adopt a set of policies different from the status quo, the remedies for the effects of secrecy become clearer. Whenever a government agency restricts the free flow of information, what should be in place are built-in mechanisms that

 • Link officials to their policy decisions

 • Make this linkage possible in a timely fashion (at a minimum, policies should not go so far that unacceptable damage occurs before officials are held to account)

 • Periodically turn over the agency’s membership and, if possible, ensure that a diverse range of people takes part

Some of the practical measures that governments can adopt to ensure that these conditions are met include

 • Limiting the amount of time facts can be kept secret

 • Establishing specific guidelines defining when information can be classified and withheld

 • Limiting terms both for legislators serving on oversight committees and for top officials

 • Giving both executive branch officials and legislative bodies the authority to release secrets under well-defined procedures that hold both accountable for their decisions

 • Providing citizens the opportunity to petition for the release of secrets and establishing a mechanism by which an impartial party can decide whether to grant such a petition in a timely fashion according to objective criteria determined by elected officials

The current oversight system for U.S. intelligence includes all these elements. Their effectiveness in practice has been uneven, but, in principle, they provide an approach for reconciling democracy and secrecy and, thus, intelligence.

Democracies are not strangers to secrets. Protecting secrets when appropriate, disclosing secrets when proper, and managing secrecy are all normal parts of the democratic process. The same principles that are used to strike a balance among competing interests in a democracy can be used to oversee intelligence secrets as well.

Special to the Hoover Digest.

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