Secrecy and the Right to Know

Contemporary Justice Review, 2015

After Snowden and Manning, the CIA torture report and debates about the accountability of the intelligence services, Secrets and Leaks is a timely contribution. Yet, for Sagar, contemporary anxieties about the abuse of secrecy and leaking are nothing new. Rather, at least for US citizens, these problems are rooted in 'silences' left by the framers of the American constitution. The framers intended that the president should have the right to employ secrecy in the public interest, but they 'did not fully explain how citizens and lawmakers could know whether the president is in fact exercising this power responsibly' (p. 49). Sagar's task is to fill this silence. Sagar begins by asking whether better judicial or legislative oversight could be the answer. In the former, Sagar argues that the judiciary cannot and should not decide when executive secrecy should be broken. Courts may lack the insider knowledge to judge claims made by the executive about the likely harm from disclosure (p. 66). Furthermore, Sagar argues that judges should not be asked to decide on an essentially political question about how the community should weigh the costs and benefits of secrecy (p. 70). Instead, the judiciary's role should be limited to making secrecy 'shallow', by ensuring that official justifications for secrecy are sufficiently reasonable and detailed to deter over-zealous concealment (p. 73). This dismissal of judicial oversight (which, comparatively, contrasts with measures found in the United Kingdom) is crucial to the remainder of Sagar's argument. As for congressional oversight, Sagar is again sceptical. There are risks when the president alone weighs the costs and benefits of secrecy, but Sagar explains that placing the responsibility on a legislative body would reproduce these and other risks. Any congressional debate on individual secrets would have to take place in camera. In such circumstances, amidst partisan divides, opportunities for unauthorised leaks would be rifea danger realised by leaks from the 9/11 committee in 2002 (p. 94). The only solution, Sagar claims, would be to limit this closed-door committee to a select few. Yet now this committee would be unable to convincingly explain its reasoning to the public, repeating the conditions of mistrust and secrecy that surround existing oversight practices.

2016

In the democratic system, an informed and educated public and an open government are two main guardians of democracy. It is often viewed that the media is the traditional and regular means by which the public gains knowledge of government activities in a democracy. The long-running controversy over the Wiki Leaks case, which was the public release of classified United States government documents by an international nonprofit organization, illustrated the strong tension between the desire for government to keep many of its actions in secret and the desire of the public to know what its government is doing. Those who disclose government’s misconducts have the compulsion to uncover any wrongdoings in government in order to protect the democratic process. On the other hand, they fear that disclosing secret information may harm the government. Despite the uncertainties and the potential risks, government whistle blowing does seem a necessary aspect of the democratic process. There is a v...

2014

: Samuel Huntington wrote about the conflict between American ideals and American institutions in 1982, identifying four episodes in which the U.S. attempted to restore the values of liberty, equality, liberal democracy, and popular sovereignty to the institutions of government. The U.S. may well be experiencing a similar episode after the experience of September 11, 2001 and subsequent security reforms. Secrecy, necessary for the function of the military and capable governance, poses a challenge to each of the foundational American ideals. Reconciling the requirements of secrecy with the people's demand for transparency and publicity poses several challenges to the U.S. government. Changes in information technology, culture, and social dynamics all exacerbate the existing tensions between the executive, legislature, media, and the people. The U.S. military exists between these actors and must balance the requirements of defending the nation while adhering to its values. Current...

Wm. & Mary L. Rev., 1984

Constitutional Commentary, 2010

As a candidate, Barack Obama promised “a new era of openness,” and his administration has taken some significant steps to increase transparency in the executive branch. But it has also continued the Bush administration’s policy of invoking the state secrets privilege to avoid judicial scrutiny of controversial warrantless surveillance and torture programs. Many commentators have noted the parallels between the Bush and Obama policies on disclosing sensitive information to courts, but they have paid little attention to how the Obama administration compares with the Bush administration in disclosing sensitive information to Congress. This essay fills that gap, and looks in detail at the Bush and Obama administration responses to legislative proposals for expanding intelligence disclosures to Congress. It reviews both the Bush and Obama administration positions on legislation that would require intelligence disclosure to Congress, and finds that there are substantial similarities - though not identity - between the Bush and Obama administrations. Both administrations have opposed disclosure of covert actions to the full intelligence committees as well as mandated disclosure of internal executive branch legal advice. On these most sensitive intelligence issues, we will see increased disclosure to Congress only over the objection of President Barack Obama.

International Journal, 2021

This essay investigates justifications for the “necessity” of official secrecy, by tracing and structuring the rationales underlying it. Justifications will be investigated through the case of “national security secrecy,” a prominent example of official secrecy. While the literature generally treats “national security secrecy” as unidimensional, this analysis demarcates several distinct rationales. Specifically, three justifications for national security secrecy are identified: the logic of crisis demanding the suspension of normal democratic processes (threat frame); the need for enabling and enhancing governance (effectiveness frame); and the delegation to and protection of decision makers (elite governance frame). The paper illustrates possible frictions, overlaps, and synergies between different rationales for national security secrecy, thus broadening the existing conceptualization away from transparency and secrecy as direct opposites. It further contributes to ongoing researc...

Society, 1975

2006

Vanderbilt Law Review, 2007

To an unprecedented degree, the nation's welfare now depends on constitutionally sound outcomes to disputes between Congress and the President over executive branch information. Yet we still lack a satisfying theoretical account of the optimal method for achieving those outcomes. In the years since Watergate, courts and scholars have embraced a theory premised on an unexamined faith that the Constitution's structure embeds in the political process the tools and incentives necessary for each branch to vindicate its interests. Judicial interference, this conventional model further assumes, is both unnecessary and unwise; left to their own devices, the political branches will pursue a salutary course of escalating battle that will ultimately yield the correct constitutional balance in any given information dispute. This Article subjects that conventional theory to the rigorous examination it has thus far escaped. It begins by dispelling the notion that the theory describes a un...