The Ring Of Gyges

According to the tradition, Gyges was a shepherd in the service of the king of Lydia; there was a great storm, and an earthquake made an opening in the earth at the place where he was feeding his flock. Amazed at the sight, he descended into the opening, where, among other marvels, he beheld a hollow brazen horse, having doors, at which he stooping and looking in saw a dead body of stature, as appeared to him, more than human, and having nothing on but a gold ring; this he took from the finger of the dead and reascended. Now the shepherds met together, according to custom, that they might send their monthly report about the flocks to the king; into their assembly he came having the ring on his finger, and as he was sitting among them he chanced to turn the collet of the ring inside his hand, when instantly he became invisible to the rest of the company and they began to speak of him as if he were no longer present. He was astonished at this, and again touching the ring he turned the collet outwards and reappeared; he made several trials of the ring, and always with the same result-when he turned the collet inwards he became invisible, when outwards he reappeared. Whereupon he contrived to be chosen one of the messengers who were sent to the court; where as soon as he arrived he seduced the queen, and with her help conspired against the king and slew him, and took the kingdom.

Plato's Republic, Book II
(Trans. by Benjamin Jowett)

The conclusion that Glaucon drew from the tale of Gyges was that it is only reputation and fear that make men good, and that if you removed the risk of public censure or punishment, anyone would easily be corrupted and become evil. I don't necessarily believe that, myself. I think there's a lot of things that go into whether one is a just person or not. Some of it's even innate: we are social animals, and some sense of empathy and justice seems to be hardwired into us (and our cousins) as part of our pack functioning. There are people who are capable of doing the right thing when nobody can see them, or when the wrong thing would never be punished. Indeed, I think it's probably safe to say that civilization functions on the basis of billions of people doing trillions of tiny right things that nobody will ever notice.

At the same time, however, it's simply naïve to think that there aren't people who would be tempted by immunity from consequence. Some people are readily corrupted by power. Others are less-easily tempted but will eventually succumb over time to the decay of conscience that can be caused by proximity to moral freedom.

I was thinking about the Ring Of Gyges this past weekend because of an argument I got into with my Dad. He was up from Wilmington--my Grandmother VanNewkirk was in town--and President Obama came up in the conversation, and it inevitably came up that while everybody there--including my conservative, lifelong-Republican grandmother--was pleased by how the President's been doing so far, some of us are more pleased than others. I've had my issues--as you know if you're a regular--with the Obama Administration's persistence in continuing policies of the Bush Administration, including policies that, as Glenn Greenwald has pointed out, candidate Obama said or implied he would end. My Dad and I ended up in a circular argument over the state secrets privilege, and how I'd wish the Obama Administration would abandon the Bush Administration position they've elected to hew to--anyway, it was a friendly, albeit heated, argument, and I think my Dad and I have agreed to disagree, but I spent a bit of Sunday thinking of Gyges and that damn ring he had; maybe Gyges was a monster when he found the ring and the thing just empowered him, or maybe he was an alright guy to start with and the ring took his soul, but in the end he was a traitor and murderer, which is of course the point of the whole thing.

Probably the biggest problem I have with what the Administration wants to do with the state secrets privilege is the fact that it's--forgive me for stating the obvious here--a Ring Of Gyges. While the privilege was originally developed as an exclusionary rule in civil cases--the Executive Branch could claim that something's a state secret and decline to share it with the court--the Bush Administration advanced it as a means of dismissing civil litigation altogether and denying criminal or quasi-criminal discovery to men in Federal custody under the murky label of "illegal combatants."¹ Turning the Ring one way makes the State invisible--immune to legal redress.

This is dangerous. It may be that there are leaders who would use the Ring rarely or only for good, but there is no state in which one man rules wisely and forever; in ours, there will be a new President in 2013 or 2017, and however wisely President Obama might govern with the Ring in his pocket, there will come a time in which the Ring will be passed on to a new bearer. And this is assuming Mr. Obama will resist the lure of the Ring and its call to absolute power. It would be better to repudiate the Ring, to return the privilege to what it was once upon a time: rarely invoked² and then only to hold back as little as possible.

Understand that there is a difference between the partial invisibility that was formerly accorded and the total invisibility that is now claimed. The plaintiffs in Reynolds were still able to sue the U.S. Government, and indeed won a settlement out-of-court. The privilege claimed then was simply that the United States didn't have to reveal certain information. The privilege claimed now is immunity from suit altogether, and at the government's whim.

You have to remember, too, that a "state secret" could be anything. The Supreme Court's presumption in Reynolds was that a state secret was something pertaining to national security, but since the Executive claims the right to invoke the privilege any time it wants to, you must take it on faith that they're entitled to do so. As Judge Maris wrote in the Court Of Appeals Third Circuit decision in Reynolds that the U.S. Supreme Court reversed:

It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officers. Indeed it requires no great flight of imagination to realize that if the Government's contentions in these cases were affirmed the privilege against disclosure might gradually be enlarged by executive determinations until, as is the case in some nations today, it embraced the whole range of governmental activities.

We need to recall in this connection the words of Edward Livingston: "No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers, but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of publicity had not been secured." And it was Patrick Henry who said that "to cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man and every friend to his country.

There is no doubt that there are some matters which would be injurious to the country if they were disclosed to the world. There is no doubt that there are legitimate secrets: sources of intelligence, methods of gathering information, perhaps even necessary quasi-legal or illegal acts that have violated treaty obligations or international conventions. But there's no doubt in my mind that allowing government to make itself invisible at will is anathema to a free society. I believe there are compromises: we give security clearances to congressmen and FISA judges, and I do not find objections to in camera review of alleged state secrets by qualified Federal judges to be persuasive or even colorable.³ That this carries risk is undeniable, too, but I find the risk of "gradual imposition and abuses" leading to tyranny to be far more outrageous and unacceptable.

Congress should act accordingly, and strip the Executive of any claim to legal immunity arising from a claim of state secrets. And Congress should go a step further, using its Article I, section 8 powers to establish courts capable of hearing state secrets cases with a reasonable guarantee of maintaining national security needs.

And in the meantime, the Obama Administration needs to abandon the Bush construction of the privilege; if Mr. Obama isn't going to abandon the Ring Of Gyges, he at least needs to reduce it to its former state.

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¹This seems as good a point as any to cop to an error I made in my argument with my Dad this weekend: while some state secrets cases have allowed for in camera review by a judge to determine whether the privilege may legitimately be claimed, United States v. Reynolds, 345 U.S. 1 (1953), which formally recognized the privilege in American law, makes the privilege something the Executive can claim without judicial review.

Contrary to what many people think, judges show a great deal of deference to the other branches of government--potentially too much. In construing a statute, legislatures are given the benefit of every doubt and the statute is read as if the legislature knew what it was doing even when such a reading challenges credulity. And when an executive action is under scrutiny, judges tend to assume the executive acted in good faith and knew what it was doing.

Reynolds is typical of such: although it subsequently turned out that the United States had no legitimate grounds for claiming privilege, the U.S. Supreme Court took the government at its word and held that the Executive was allowed to withhold information on their say-so, giving the government deference that was subsequently discovered to be undeservedly generous. In fact, personally I think Reynolds was wrongly decided for (as the three dissenters in Reynolds wrote without further comment) the reasons given in the Court Of Appeals opinion; I find Judge Maris' arguments, quoted in the main text, supra, to be uncannily prescient. However, regardless of what I think of it, Reynolds is the law of the land.

In any case, I believe I've said or implied on at least one occasion that in camera review was more frequent prior to the Bush Administration; this was an error.

²In 2006, John Dean wrote, "a recent study reports that the 'Bush administration has invoked the state secrets privilege in 23 cases since 2001.' By way of comparison, 'between 1953 and 1976, the government invoked the privilege in only four cases.'" While I think Mr. Dean's assertion is probably accurate, he doesn't appear to provide a source for it.

³If a judge can't be qualified, how are members of Congress to be given security clearances? Or members of the Executive, for that matter? It seems to me you could progress to certain secrets being so toxic that nobody ought to be aware of them, which is obviously absurd.