Forthcoming in Judging National Security: The Evolving Judicial Role in National Security Cases (Robert M. Chesney & Steven I. Vladeck eds., Oxford University Press), 2021. 2019, Georgetown Law Faculty Publications and Other Works. 2195.
45 Pages Posted: 23 Sep 2019 Last revised: 13 Apr 2021
Date Written: September 9, 2019
Many theorists consider secrecy inimical to liberal democracy. Precise examination of the role that it plays in contemporary government, however, including its strengths and weaknesses, has been limited. This chapter, accordingly, lays out a functional theory of secrecy, considering its role in the three branches of government in four contexts: deliberation, information security, law, and adjudicatory processes. Whether and to what extent cloaking information advances the interests of the state and society varies according to how it operates in each category. First, deliberative secrecy carries significant advantages: it can facilitate informed debate and honest exchange, allowing individuals to alter their views without losing face and ensuring that the final determination is made on the merits. The nature of the deliberations alter as the outcome approaches implementation of the law, adoption of rules, and resolution of a legal question. Communications may become probative, if not dispositive, of the final rule, interpretation, policy, or decision. Along this spectrum, the impact of secrecy shifts from facilitating open exchange to obfuscating the final finding, law, or judgment. As it does so, the quality of the communication shielded from public scrutiny shifts from deliberative-secrecy to information-secrecy or secret law, in which capacity it may undermine the effective operation of a liberal, democratic state. Second, information secrecy masks data that the government obtains or generates. It encompasses controls placed on material (e.g., classification, informal controls, and patent secrecy orders) as well as restrictions on government employees. Secrecy functions in this realm to forestall efforts by individuals wronged from seeking justice through the courts. Absent knowledge of how the executive wields its authority, neither facial nor as-applied challenges may be brought to limit government overreach. Civil litigation also may be severely constricted, resulting in the failure to rectify a wide range of grievances ranging from breach of contract and environmental damage, to wrongful death and personal injury. The cost of cloaking how power is exercised is borne in litigation, civic engagement, and public debate. “Official” interpretations may go unchallenged even as individuals with access to information increase their power within the executive and vis-à-vis the other branches and citizens. To the extent that information-secrecy bleeds over into the other branches, attempting to bind their actions, it undermines the other branches’ ability to perform their constitutional functions. Third, secret law centers on efforts to hide the law. Secrecy here threatens the structure of the state itself. It has a profound impact on the rule of law even as it augments the power of executive agencies. Fourth, adjudicatory secrecy masks the administration of justice. It impacts the introduction of evidence, proceedings, and publication of rulings. It affects the public’s right to participate in the judicial process and to learn from it. Judges may hold trials in camera, or ex parte, increasing the potential for poor decision-making. It may conceal judicial decisions, undermining rights central to the liberal, democratic state. Like secret law, this is a particularly pernicious form of obfuscation. The reason, however, is slightly different than that offered in relation to the courts: as an executive act, it affects separation of powers and the protection of rights.
Keywords: national security, information security, state secrets, adjudicatory secrecy, secret law
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