Open-Source Government

Huffington Post
Mark Jeffrey
Open-Source Government

In recent years, we've seen the growth of a canker on the Constitution. A swelling blind spot where were are increasingly not allowed to look. I'm talking about abuse of governmental secrecy. 'We the people' cannot effectively self-govern when certain things are routinely hidden from our view.

Now, of course certain things need to be classified (it needs to be said, before the comment section below overfloweth). Yes, yes, we need to have some secrets from the bad guys. But we ought to recognize that democracy pays a steep price for each and every thing we classify. We ought to do it very, very sparingly. Even unwillingly.

In the world of software, there are open-source systems and there are closed-source systems. Open-source systems (such as Linux or Mediawiki) allow anyone to submit bits of source code to the project. The whole world collaborates upon it. Everyone can see what everyone else has submitted. There are no secret, proprietary parts. Open source projects are fully transparent.

As a result, open source systems are far more robust and better-designed than their closed, proprietary counterparts. They have greater security (paradoxically, making security apparatus and methods known actually makes them stronger; obfuscation of methods does not create greater security). Open source systems are far more resistant to viruses (anyone running closed-source Microsoft Windows certainly knows what I mean). In short, open source systems have the electronic equivalent of evolutionary advantages. They're faster, smarter, stronger. After all, you can't compete against the collaborative efforts of the whole world -- especially when full transparency ensures everyone is dealing with the absolute truth. There is no bullshit, no hidden agendas. Such things are simply impossible to sustain in such an environment.

The Constitution is the operating system of America.

The very reason America is great is because it has largely been free and open. It has, in effect, been an open-source government. And when it is transparent, as all good open source environments are, checks and balances work. The bad stuff is burned away, stopped dead in its tracks, or impeached.

Yet this transparency in our government -- the strength of our system -- is increasingly becoming murky and dark. In April of 2006, the Bush Administration used the state secrets privilege to block a legal challenge to AT&T and the NSA over illegal surveillance of U.S. citizens. In May 2006, Khalid El-Masri was tortured by the CIA (which it acknowledges) and falsely held for several months. When the CIA released him finally without charge, El-Masri challenged his detention in a U.S. District court. The case was dismissed under the state secrets privilege: even discussing the detention would, according to the government, threaten to reveal classified information. The examples are legion, I won't list them all here -- other contributors to the HuffingtonPost do so on an almost daily basis.

Interestingly enough, the very legal origin of the state secrets doctrine is itself founded on an abuse of power and a lie.

In 1953, in the United States v. Reynolds (345 U.S.1), the Supreme Court recognized the state secrets privilege for the first time. There was a crash of a military bomber. The widows of the slain pilots sued for details of the crash. The Air Force refused, saying that national security would be threatened with such a release, since the bomber's mission was top secret. The Supreme Court saw things the military's way and for the first time allowed the state secrets privilege, yet sternly warned that "it is not to be lightly invoked".

In 2000, the relevant accident reports were finally declassified. Guess what? There was no secret information whatsoever in the crash reports from 1953. Furthermore, the reports showed that the aircraft involved was in poor condition, something the Air Force certainly did not want released publicly. Thus it was that the Air Force, in attempting to cover up its own negligence, succeeded instead in opening the door for abuses of power that butterfly-effect down to our own time. The seeds of Gitmo, of secret rendition and torture, of the overturning of habeas corpus, of illegal surveillance of American citizens were planted on that day.

But it did not need to be. It still doesn't. We should make every effort to reverse this trend of over-classification. A transparent, open-source government where state secrets are only classified in the rarest, most dire of instances and where there was some form of check and balance on the classifying agency would in the end make America stronger, not weaker.