'Oversight of National Security Secrecy in the United States' by Stephen Schulhofer - forthcoming in
Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar Publishing, 2013) edited by David Cole, Federico Fabbrini and Arianna Vedaschi
argues that
Some secrecy in national security matters is appropriate and inevitable, but unilateral executive control over decisions whether to impose secrecy is not. Executive control over sensitive information presumes a unique executive expertise. Yet the executive branch is not the sole repository of the relevant knowledge and experience. Congress has considerable national security expertise, and courts have solid institutional capacities to elicit expertise. In any case, information-access judgments demand an appreciation for the value of both secrecy and transparency, and the ability to make fine-grained judgments that accommodate both. Yet national security officials are predisposed to abhor transparency. Courts offer not only the obvious advantage of independence from self-interested incentives, but also the rarely noticed point that they are superior in some essential forms of expertise.
This paper ... examines the expertise and incentives of executive, legislative and judicial officials, and uses that framework to assess possible approaches to oversight of decisions to impose secrecy. It deploys that perspective to propose a framework for effective oversight of executive branch judgments about access to national security information.
Schulhofer comments that -
In a constitutional system, the legislature is expected to play an active role in formulating
policy, and the courts are expected to play an active role in protecting individual rights. But
nonetheless, where issues affecting national security are concerned, executive officials in
virtually all constitutional democracies typically exercise unchecked power to conceal
information that is essential to the effective exercise of those legislative and judicial
functions. In its actual practices, the United States (US) largely conforms to this pattern of de
facto executive dominance, even though its formal laws grant substantial power to regulate
secrecy to Congress and the courts.
Although some secrecy in national security matters is appropriate and inevitable,
unilateral executive control over decisions whether to impose secrecy is not. American law
provides five separate processes for overriding executive secrecy judgments. Along with
semi-independent review within the executive branch and oversight by Congress, three
distinct bodies of law grant a checking function to the courts: the Classified Information
Procedures Act (CIPA, applicable in criminal cases), the state secrets privilege (SSP,
applicable in civil suits), and the Freedom of Information Act (FOIA, a statute that creates a
free-standing cause of action to demand disclosure of information held by the government).
These five systems differ considerably in the degree to which they involve deference to the
executive, or – in contrast – active, independent judgments about the need for secrecy.
American law thus provides broad scope to compare competing approaches. In addition,
where American adversary procedures for the review of executive-branch secrecy are at their
height (in CIPA), they permit full-fledged representation by security-cleared counsel, a more
vigorous checking capability than appears possible through the ‘special advocate’ approach favored in the UK. This chapter describes these American oversight systems and assesses them by focusing on the expertise and incentives of the participants in each.
Executive control over sensitive information presumes a unique and highly
specialized executive expertise, a notion not only touted by the intelligence community but
widely accepted by members of Congress, judges and the general public. Yet this common
conception involves a mixture of truth, hyperbole, misunderstanding and myth.
The executive branch is not the exclusive repository of the knowledge and experience
necessary to make sound judgments about when to maintain secrecy in national security
affairs. Congress has considerable expertise in military, foreign policy and intelligence
matters. While judges typically do not, courts have solid institutional capacities to elicit
expertise. Nor is national security expertise the only proficiency required. Information-access
judgments demand an appreciation for the value of both secrecy and transparency. Members
of Congress and judges may not have deep familiarity with the former, but they thoroughly
understand the latter. National security officials, in contrast, are predisposed by training and
experience to abhor transparency; in this crucial expertise they are markedly deficient. Courts
therefore have an indispensable place in a sound system for making information-access
decisions. They offer not only the obvious advantage of independence from self-interested
incentives, but also the rarely noticed point that they are in fact superior in some essential
forms of expertise.
In one domain of American practice, criminal cases governed by CIPA, US courts
routinely provide active oversight of classification decisions, an experience that demonstrates
the capacity of the CIPA model to afford a fully adversarial and yet workable judicial check.
This chapter builds on this adversarial judicial model and integrates it with a more
robust legislative role, in order to propose a framework for effective oversight of executive
branch judgments about access to national security information.
Section 1 describes the existing executive secrecy apparatus. Section 2 examines the
present structure of legislative and judicial oversight, and Section 3 assesses the extent to
which Congress and the courts currently are able to prevent unjustified secrecy. As Sections
2 and 3 show, these outside institutions have considerable legal powers, but they now operate under self-imposed informal constraints; their willingness to thwart improper secrecy is episodic and feeble. Section 4 develops an oversight framework more consonant with
constitutionalism – a framework that combines robust national security safeguards with
maximum feasible transparency and accountability.
