Deep secrecy

Stanford Law Review

Volumn 62, Issue 2, 2010, Pages 257-340

  Pozen, David E ^a  

^a YALE UNIVERSITY   (United States)

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EID: 75649124508     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (385)

1. Donald H. Rumsfeld, Sec'y of Def., Department of Defense News Briefing (Feb. 12, 2002), available at http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=2636.
2. Memorandum from John Ashcroft, Att'y Gen. of the United States, to the Heads of All Fed. Dep'ts and Agencies (Oct. 12, 2001), available at http://www.usdoj.gov/archive/oip/011012.htm.
3. Exec. Order No. 13,292, § 1.7(c), 3 C.F.R. 196, 200 (2004).
4. INFO. SEC. OVERSIGHT OFFICE, REPORT TO THE PRESIDENT 2008, at 7 (2009), available at http://www.archives.gov/isoo/reports/2008-annual-report.pdf.
5. See MINORITY STAFF OF H. COMM. ON GOV'T REFORM, 108TH CONG., SECRECY IN THE BUSH ADMINISTRATION 68-81 (2004) [hereinafter WAXMAN REPORT].
6. See MINORITY STAFF OF H. COMM. ON GOV'T REFORM, 108TH CONG., SECRECY IN THE BUSH ADMINISTRATION.at 26-28.
7. Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559, 1562-63, 1591-99 (2007).
8. See, e.g., HART SEELY, The Unknown, in PIECES OF INTELLIGENCE: THE EXISTENTIAL POETRY OF DONALD H. RUMSFELD 2 (2003) (setting Rumsfeld's remark to satirical verse); Foot in Mouth Prize for Rumsfeld, CNN.COM, Dec. 1, 2003, http://www.cnn.com/ 2003/WORLD/europe/12/01/rumsfeldenglish.reut/ (reporting Rumsfeld's receipt of an international booby prize for the the most baffling comment by a public figure).
9. Rum Remark Wins Rumsfeld an Award, BBC NEWS, Dec. 2, 2003, http://news.bbc.co.uk/2/hi/americas/3254852.stm.
10. Rumsfeld, supra note 1. Rumsfeld's remark is somewhat ambiguous as to its subject. Although the context suggests it was directed to the challenges of collecting intelligence, the reference to free countries suggests he may have been invoking the challenges of utilizing secrecy as well. Whatever his intent, my project here is not to vindicate Rumsfeld but to apply his taxonomy to state secrets.
11. See David E. Pozen, Note, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 YALE L.J. 628, 650-52 (2005).
12. See ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE 107-24 (2006) (describing the rise of the international right-to-know movement, facilitated by a transparency lobby that advocates and utilizes public disclosure laws); Thomas Blanton, The World's Right to Know, FOREIGN POL'Y, July-Aug. 2002, at 50 (same).
13. This is the situation presented by the leading government secrecy controversy of the moment. See infra note 170 and accompanying text.
14. See infra Part I.A.
15. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 21-22, 75-79, 84-85 (1988).
16. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW. 12-16.
17. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 21.
18. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 76
19. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 21.
20. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 76.
21. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 84-85, 104. Scheppele does not elaborate how she would translate this principle into enfor ceable legal rules.
22. I thank Jim Wilson for suggesting this example.
23. See, e.g., KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW, 120-21.
24. See Gary T. Marx, The Law's Secrets, 88 MICH. L. REV. 1614, 1615 (1990) (book review) (Scheppele restricts her attention to legal secrets involving contending parties whose cases come before a judge.).
25. KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY AND EFFICIENCY IN THE COMMON LAW 21, 75-79, 84-85.
26. See, e.g., THOMAS J. MICELI, ECONOMICS OF THE LAW: TORTS, CONTRACTS, PROPERTY, LITIGATION 100 (1997)
27. MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 109-11 (1993)
28. Richard Craswell, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 VA. L. REV. 565, 571-72 (2006)
29. Paula J. Dalley, From Horse Trading to Insider Trading: The Historical Antecedents of the Insider Trading Debate, 39 WM. & MARY L. REV. 1289, 1340-41 (1998).
30. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 121-23 (1996).
31. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 121.
32. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 121
33. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 123.
34. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 489, 514-15, 542-43 (2007).
35. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 510-27.
36. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 515.
37. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 514.
38. Editorial, Secrecy as a Spoil of Victory, N.Y. TIMES, Jan. 25, 2006, at A20. For similar uses of deep secrecy to mean inordinate or extreme secrecy, in a generalized sense, see Jim Dwyer, Out of Sight, Till Now, and Giving Away Billions, N.Y. TIMES, Sept. 26, 2007, at B1; Nat Hentoff, Fresh Start in '09? The Dark Bush Legacy on Secrecy, WASH. TIMES, Feb. 25, 2008, at A19; Jonathan Schell, American Tragedy, NATION, Apr. 7, 2003, available at http://www.thenation.com/doc/20030407/schell.
39. See, e.g., Karl Fleming, Twilight of a Tough Guy, L.A. TIMES, June 26, 2006, at 11;
40. Louise Kennedy, Political Satire Waffles with Inconsistencies, BOSTON GLOBE, Feb. 16, 2008, at 2C
41. Frank Warren, Secret Thoughts of Travelers, Revealed, N.Y. TIMES, Oct. 9, 2007, at C10.
42. One previous commentator has hinted at this point. While purporting to adopt Scheppele's distinction between deep and shallow secrets, Heidi Kitrosser adds that the two differ in degree, not kind, and that secrets may be not only deep or shallow but also minimally or very deep or shallow. Kitrosser, supra note 31, at 493-94, 514-15; see also id. at 515 (stating that these terms are necessarily beset by imprecision).
43. In fact, the truly proximate targets of many state secrets-those individuals or groups against whom the state plans to take hostile action-will often have a weaker claim to the concealed information than the average citizen. Certainly as a matter of customary law and democratic theory, the government has a lesser duty to make information available to foreigners than to citizens, even if the foreigners may be more immediately and negatively affected by the content.
44. See generally SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES (2007) (explaining how diversity of viewpoints facilitates problem-solving)
45. JAMES SUROWIECKI, THE WISDOM OF CROWDS: WHY THE MANY ARE SMARTER THAN THE FEW AND HOW COLLECTIVE WISDOM SHAPES BUSINESS, ECONOMIES, SOCIETIES, AND NATIONS (2004) (explaining why, under certain conditions, groups may be superior at aggregating and processing information than any single member would be on her own); infra notes 71-74 and accompanying text (discussing the mosaic theory). For the size of a group aware of a shallow secret to foster publicity, it is not necessary that the group as a whole be better than each of its individual members at discerning the secret's contents. In many cases, the mere fact that anyone in the group discerns the contents, or that the group average moves closer to a correct estimate thereof, will be enough to compromise the secret.
46. Lest this example seem overly fanciful, see COMM'N ON PROTECTING AND REDUCING GOV'T SECRECY, REPORT, S. DOC. NO. 105-2, at 26 (1997) [hereinafter MOYNIHAN COMMISSION REPORT] (describing executive branch unacknowledged special access, or black, programs, the very existence and purpose of which are classified); SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, ALLEGED ASSASSINATION PLOTS INVOLVING FOREIGN LEADERS, S. REP. NO. 94-465 (1975) [hereinafter CHURCH COMMITTEE ASSASSINATION REPORT] (detailing the CIA's lead role in several assassination plots). Shortly before this Article went to press, news reports revealed that in recent years the CIA developed but did not implement plans to assassinate al Qaeda leaders.
47. See Mark Mazzetti & Scott Shane, After 9/11, C.I.A. Had Plan to Kill Qaeda's Leaders, N.Y. TIMES, July 14, 2009, at A1.
48. See, e.g., U.S. Dep't of Justice, Organization Chart, http://www.usdoj.gov/dojorg.htm (last visited July 14, 2008)
49. U.S. Dep't of Labor, Organizational Chart, http://www.dol.gov/dol/aboutdol/orgchart.htm (last visited July 14, 2008).
50. See Exec. Order No. 12,333, § 2.11, 3 C.F.R. 200, 213 (1982); Major Tyler J. Harder, Time to Repeal the Assassination Ban of Executive Order 12,333: A Small Step in Clarifying Current Law, 172 MIL. L. REV. 1, 9 (2002). There are vigorous debates over what qualifies as assassination and whether assassination for reasons of self-defense is ever permissible under international law that need not concern us here.
51. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 121-22.
52. On this dimension of depth as on the previous two, the secrets that score lowest will be those about which the entire community knows a tremendous amount but has no official confirmation: what might be termed open secrets. These are still secrets, in the thin sense that the government will not substantiate the information. But the public is in on the secret, and the government knows that the public knows. Open secrets are longstanding favorites of repressive regimes. Everyone in Stalin's Soviet Union was aware that certain acts could land him or her in a labor camp, even though the list of offenses was nowhere codified. See LESZEK KOŁAKOWSKI, MAIN CURRENTS OF MARXISM: THE FOUNDERS, THE GOLDEN AGE, THE BREAKDOWN 864 (P.S. Falla trans., W.W. Norton & Co. 2005) (1978). It was important to the Communist Party that this awareness be fostered, so that the populace would be scared into compliance, but also that the list not be officially acknowledged and thereby exposed to public scrutiny or foreign criticism. Id. Requiring the Soviet people to deny known facts such as the role of labor camps allowed the Party to conscript them into a shared authorship over the falsehood and a shared complicity in the underlying policies. Open secrets may raise serious problems for a regime's legitimacy, but a different sort of problem from those raised by deep secrets. Open secrets can be seen as extremely shallow secrets.
53. Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).
54. See Dennis F. Thompson, Democratic Secrecy, 114 POL. SCI. Q. 181, 185-86, 192-93 (1999).
55. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT pp. 267-267 (setting out the problem of specification).
56. Such post hoc disclosure is not inevitable. In the CIA's case, it would violate the doctrine of;plausible deniability,; whereby covert operations are performed;in such a way that if discovered, the role of the United States could be plausibly denied.; CHURCH COMMITTEE ASSASSINATION REPORT, supra note 40, at 3, 11-12.
57. Cf. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV. 909, 920 n.41 (2006) (comparing executive and legislative secrecy). To be more precise, although deep secrecy may exist in the legislative and judicial branches with respect to deliberative machinations, it is highly unlikely to exist with respect to their final decisions. See infra note 66 and accompanying text (distinguishing consummated from deliberative deep secrets). As Adam Samaha suggests, the intelligence budget is the obvious counterexample in Congress.
58. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV.920 n.41. Yet while the intelligence budget provides a dramatic example of congressional secrecy, it is not especially deep secrecy. Everyone knows of the budget's existence, many people know the rough contours of what it includes, and members of Congress and the executive can view the budget itself. See generally STEPHEN DAGGETT, CONG. RESEARCH SERV., THE U.S. INTELLIGENCE BUDGET: A BASIC OVERVIEW (2004). I am skeptical that any of the government texts that commentators describe as; secret laws; are very deep secrets. To have any effect on the lived world, these; laws; must be disclosed at least to those who would enforce them, which ensures some nontrivial degree of numerosity, if not also institutional diversity, in the types of actors who are aware of their content. More likely to be deep secrets are discrete government activities taken pursuant to or in contravention of public or quasi-public laws.
59. But cf. infra Part IV.C (explaining structural divisions within the executive branch).
60. Donald H. Rumsfeld, Sec'y of Def., Department of Defense News Briefing (Feb. 12, 2002), available at http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=2636 and accompanying text.
61. Paul Gowder, Secrecy as Mystification of Power: Meaning and Ethics in the Security State, 2 I/S: J.L. & POL'Y FOR INFO. SOC'Y 1, 2 (2006) (The academic (particularly legal academic) and public discourse on government secrecy is overwhelmingly produced in the mode of utilitarian expediency.); Note, Mechanisms of Secrecy, 121 HARV. L. REV. 1556, 1557-58 & n.11 (2008) (adopting this view and providing citations to authors doing the same). Useful summaries of the costs and benefits of government secrecy include MOYNIHAN COMMISSION REPORT, supra note 40, at 6-9
62. SISSELA BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION 18-26, 102-15, 171-209 (Vintage Books 1989) (1983)
63. Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 894-910 (2006)
64. Cass R. Sunstein, Government Control of Information, 74 CAL. L. REV. 889, 894-98 (1986).
65. The concepts of; bad accountability; and; good accountability; are developed in Elizabeth Garrett & Adrian Vermeule, Transparency in the U.S. Budget Process, in FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY 68, 83-87 (Elizabeth Garrett et al. eds., 2008).
66. See, e.g., William J. Stuntz, Secret Service: Against Privacy and Transparency, NEW REPUBLIC, Apr. 17, 2006, at 12 (arguing that too much transparency in government leads to a fixation on procedure rather than substance, a shuttling of decision making into informal back channels, and a privileging of the status quo). Opacity, Stuntz asserts, is essential to a government that moves, acts, makes things happen.
67. William J. Stuntz, Secret Service: Against Privacy and Transparency, NEW REPUBLIC, Apr. 17, 2006 14.
68. Notable arguments on how secrecy can harm national security include MOYNIHAN COMMISSION REPORT, COMM'N ON PROTECTING AND REDUCING GOV'T SECRECY, REPORT, S. DOC. NO. 105-2, at 8 (explaining that as the size of a secrecy system grows, the prospects for leaks grow in proportion);
69. BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION at 194-96 (discussing; self- defeating military secrecy;)
70. DANIEL PATRICK MOYNIHAN, SECRECY: THE AMERICAN EXPERIENCE 80 (1998) (concluding, from an extensive review of Cold War history, that; as the secrecy system took hold, it prevented American government from accurately assessing the enemy and then dealing rationally with them during this and other critical periods;)
71. ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE at 42-48, 140-41 (explaining the widespread belief that excessive secrecy reduced our preparedness for the Pearl Harbor and 9/11 attacks)
72. Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 ADMIN. L. REV. 131, 136-39 (2006) (providing numerous examples of how openness can promote security).
73. JEREMY BENTHAM, Essay on Political Tactics, in 2 THE WORKS OF JEREMY BENTHAM 301, 315 (John Bowring ed., Edinburgh, William Tait 1843) (1838).
74. LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY AND HOW THE BANKERS USE IT 92 (1913). Justice Brandeis's aphorism has been enshrined in the Government in the Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (1976) (codified as amended at 5 U.S.C. § 552(b) (2006)), the Sunshine in the Courtroom Act of 2009, S. 657, 111th Cong. (2009), the Sunshine in Litigation Act of 2009, S. 537, 111th Cong. (2009), and scores of other federal and state information-access laws that use the sunlight metaphor in their titles.
75. MOYNIHAN, SECRECY: THE AMERICAN EXPERIENCE, at 59, 73
76. MOYNIHAN COMMISSION REPORT, COMM'N ON PROTECTING AND REDUCING GOV'T SECRECY, at 21. This argument is most associated with Max Weber and his writings on the efforts of bureaucracies to entrench their authority through the cultivation of privileged knowledge.
77. See, e.g., MAX WEBER, Bureaucracy, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 196, 233-34 (H.H. Gerth & C. Wright Mills eds. & trans., Oxford Univ. Press 1970) (1946) (The concept of the 'official secret' is the specific invention of bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude....).
78. See MOYNIHAN COMMISSION REPORT, COMM'N ON PROTECTING AND REDUCING GOV'T SECRECY, at 9-10 (discussing efforts to quantify the financial costs of United States government secrecy and noting various annual estimates in the billions).
79. It would be quite a challenge to test empirically the relationship between the depth of state secrets and the quality of policy outcomes. The researcher would have to devise not only quantitative measures of depth and quality but also a reliable way to monitor state secrets, to assess their impact, and to predict how outcomes would have differed had alternative types or amounts of secrecy been used. The study of particular deep secrets would perforce be conducted retrospectively, after the relevant information has emerged, and even then one could never be sure how those secrets compare to others that may remain entirely unknown.
80. See IRVING L. JANIS, GROUPTHINK: PSYCHOLOGICAL STUDIES OF POLICY DECISIONS AND FIASCOES 9 (2d ed. 1982) (defining groupthink as; a mode of thinking that people engage in when they are deeply involved in a cohesive in-group, when the members' strivings for unanimity override their motivation to realistically appraise alternative courses of action;). Groupthink can lead to suboptimal decision making by; foster[ing] overoptimism, lack of vigilance, and sloganistic thinking about out-groups. At the same time, groupthink causes members to ignore negative information by viewing messengers of bad news as people who; don't get it.';
81. Marleen A. O'Connor, The Enron Board: The Perils of Groupthink, 71 U. CIN. L. REV. 1233, 1258 (2003).
82. Michael Isikoff, The Fed Who Blew the Whistle, NEWSWEEK, Dec. 22, 2008, at 40. I will return to the Terrorist Surveillance Program in Part IV. See infra notes 280, 289, 308, 310 and accompanying text.
83. See Gia B. Lee, The President's Secrets, 76 GEO. WASH. L. REV. 197 (2008) (arguing that the strength of this justification varies depending on context and should not be given unqualified deference).
84. It is important not to conflate the concept of deliberative deep secrecy-secrecy about the existence of deliberations-with the more common (indeed, ubiquitous) phenomenon of secrecy about the content of deliberations. If members of the public know that a certain type of meeting was held by certain officials, but do not know what was said at the meeting, anything discussed therein should not qualify as a deep secret. The meeting is a classic shallow secret; the outsiders know in broad terms what they do not know. If outsiders could not anticipate the substance of particular topics of discussion, those topics will be deeper secrets than those that were more anticipatable, but still, the unknown content of a known proceeding is better classified as shallow. Although we might assume a positive correlation between consummated and deliberative deep secrets, there is no necessary connection between the two. Decisions taken at an unknown meeting may lead only to public actions. Decisions taken at a widely known (but nonpublic) meeting may lead only to covert actions.
85. Deep secrecy might help officials shield potentially embarrassing details of their private lives from the media, which may be attractive to the utilitarian because it leads the press toward more productive areas of inquiry or because it makes qualified individuals more likely to pursue government service. On the other hand, these benefits may be counteracted by the costs of depriving the public of information that might bear on the keeper's fitness for office. These sorts of secrets, relating to the off-duty lives of government employees rather than the decisions taken by such employees in an official capacity, are not the focus of this analysis. Arguably, they are not even state secrets, just personal secrets.
86. Thompson, Democratic Secrecy at 186. Thompson does not provide examples of policies that have this quality.
87. See Mary M. Cheh, Judicial Supervision of Executive Secrecy: Rethinking Freedom of Expression for Government Employees and the Public Right of Access to Government Information, 69 CORNELL L. REV. 690, 691-92 (1984)
88. Sunstein, Government Control of Information, at 898-901.
89. Since 1950, there has been a federal statute that criminalizes the publication of certain classified information concerning United States intelligence activities, 18 U.S.C. § 798 (2006), but it has hardly ever been deployed by prosecutors. See Jack Goldsmith, Secrecy and Safety, NEW REPUBLIC, Aug. 13, 2008, at 31, 32-34 (discussing § 798 and the; government's practical inability to enforce this law against the press;); see also MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY 94 (2d ed., rev. 2002) (noting the; media's natural bias in favor of complete openness;). Although the press will occasionally sit on sensitive information for weeks or months at the government's request, the possibility of such journalistic self-restraint cannot give much comfort to the secret-keepers.
90. See David E. Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, at 630-34, 664-66 (explaining the mosaic theory).
91. Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978).
92. David E. Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, at 664-74.
93. David E. Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, at 673-74, 677 (discussing the potential for; positive; mosaic-making)
94. see also Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U. PA. J. CONST. L. 1011, 1060 n.188 (2008) (speculating that the Bush administration relied so heavily on the mosaic theory because it feared that concerned citizens-;;mosaic artisans' in the person of investigative reporters rather than astute terrorists;-would be the ones to piece together disclosures).
95. Geoffrey Stone has argued that given the diversity and incommensurability of interests at stake in government secrecy policies, cost-benefit analysis is; so fraught with ambiguity; that it quickly becomes; unmanageable... in practice.; GEOFFREY R. STONE, TOP SECRET: WHEN OUR GOVERNMENT KEEPS US IN THE DARK 2-3 (2007). Implicit in Stone's argument on the limits of utilitarian analysis is the need to look to other, non-consequentialist values as well.
96. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT, at 103.
97. Mark A. Chinen, Secrecy and Democratic Decisions, 27 QUINNIPIAC L. REV. 1, 3-8 (2009) (summarizing canonical liberal democratic arguments on behalf of government transparency)
98. Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV., at 895-99 (same)
99. Seth F. Kreimer, Rays of Sunlight in a Shadow War: FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency, 11 LEWIS & CLARK L. REV. 1141, 1144-47 (2007) (same). Despite this rich vein of theorizing, Dennis Thompson has observed that contemporary scholars rarely address secrecy from a systemic perspective.; [M]ost of the literature on government secrecy, Thompson wrote in 1999,; neglects the fundamental democratic values underlying the problem and focuses instead on the laws and policies that regulate secrecy, patterns of abuses by individual officials, or particular practices such as executive privilege and national security.; Thompson, supra note 47, at 181-82.
100. Joseph E. Stiglitz, On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life, in GLOBALIZING RIGHTS: THE OXFORD AMNESTY LECTURES 1999, at 115, 116 (Matthew J. Gibney ed., 2003).
101. MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY, at 15 (quoting President Nixon). The hedge here lies in the phrase; which properly belongs to the public.; Under the expansive view of executive power that Nixon would later espouse
102. see MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY at 54-71, much information was considered not to; belong; to the public but rather to the President alone.
103. Rather than make an affirmative democratic case for state secrecy, commentators have more often rebutted democratic objections to the practice by asserting that the government; owns; the information it creates and controls, much like a private citizen might own information. See MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY at 9 (noting the recurring use of this argument by American officials)
104. Cass R. Sunstein, Government Control of Information, 74 CAL. L. REV. at 916-18 (discussing and rejecting this view). The analogy to private ownership in this context strikes me as very unattractive. It reifies the government in regard to a legal concept (intellectual property) meant to respect personhood and to stimulate market competition and creative output, it disables criticism, and it profoundly offends principles of popular sovereignty when the concealed information concerns affairs of state.
105. Dennis F. Thompson, Democratic Secrecy, 114 POL. SCI. Q. at 182.
106. Other cases more closely approximate the Scheppelian paradigm. For instance, the Constitution's Due Process Clause has been interpreted to require that prosecutors reveal potentially exculpatory evidence to criminal defendants, even if the defendants have no way of knowing the evidence exists. Brady v. Maryland, 373 U.S. 83, 86-88 (1963). This disclosure requirement tracks Scheppele's contractarian arguments against deep secrecy in proceedings between two parties, only here one party is the state.
107. JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE 52 (Thomas Burger trans., MIT Press 1991) (1962)
108. SISSELA BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION, at 172-73 (tracing the ecclesiastic origins of the principle of arcana imperii, later appropriated by secular leaders to preserve an; aura of sacredness; and thereby to forestall democratic scrutiny and sentiment).
109. IMMANUEL KANT, Eternal Peace, reprinted in THE PHILOSOPHY OF KANT: IMMANUEL KANT'S MORAL AND POLITICAL WRITINGS 430, 470 (Carl J. Friedrich ed. & trans., 1949) (1795)
110. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT, at 97-105 (explaining Kant's publicity principle and defending it on moral and deliberative grounds)
111. David Luban, The Publicity Principle, in THE THEORY OF INSTITUTIONAL DESIGN 154 (Robert E. Goodin ed., 1996) (providing a detailed historical and critical exegesis of the publicity principle).
112. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 179-86 (1991).
113. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS pp. 287-288. A few authors have also explored ways in which secrecy may be democracy-enhancing within government. For example, Amy Gutmann and Dennis Thompson describe a category of secrets, which they call; secrecy in the service of deliberation,; that permit officials to engage in more extensive deliberation than would be possible with greater transparency.
114. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT, at 114-17. The obvious justification for these secrets is not democratic but utilitarian-that they will facilitate superior policy outcomes- but Gutmann and Thompson plausibly suggest that augmenting the quality of bureaucratic discourse can serve democratic values even when it comes at the expense of popular discourse. Whether one evaluates the quality of intragovernmental deliberation from a utilitarian or democratic perspective, deep secrecy should appear similarly unattractive. As explained supra Part III.A.2, shallow secrecy can suffice to provide many of the deliberative benefits that a clandestine decision making process might afford, without all of the drawbacks.
115. Cf. JEREMY WALDRON, LAW AND DISAGREEMENT 265-66 (1999) (arguing that precommitment justifications cease to be useful in democratic theory; [o]nce it becomes unclear or controversial what the people have committed themselves to;).
116. U.S. CONST. art. I, § 5, cl. 3 (Journal Clause).
117. Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271, 276 (1971).
118. See, e.g., Rubin V. United States, 525 U.S. 990, 994 (1998) (Breyer, J., dissenting from denial of certiorari) (stating that; the bounds of [executive privilege] are unclear;); Fenster, supra note 54, at 889 (;[T]ransparency's status as a legal obligation for government entities in the United States and as an individual right for American citizens is remarkably vague.;)
119. Heidi Kitrosser, Congressional Oversight of National Security Activities: Improving Information Funnels, 29 CARDOZO L. REV. 1049, 1051 (2008) (noting; widespread uncertainty as to whether Congress constitutionally may force the President to disclose information;).
120. I am aware of only one work, by Adam Samaha, that has considered secrecy's constitutional status from a systemic perspective, looking to the document as a whole and not just to a particular textual provision, doctrinal line, or category of information-access dispute. See generally Samaha, supra note 51. Mark Rozell and Heidi Kitrosser have taken similarly broad views in their insightful studies of executive privilege. See generally ROZELL, supra note 70; Kitrosser, supra note 31.
121. See PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 3-92 (1982) (identifying these as the five standard modalities of constitutional argument). While Bobbitt's taxonomy can of course be disputed, it is comprehensive and; widely accepted,;
122. Kermit Roosevelt III, Polyphonic Stare Decisis: Listening to Non-Article III Actors, 83 NOTRE DAME L. REV. 1303, 1312 (2008), and so provides an attractive if artificial tool for organizing this overview. Bobbitt himself introduced a sixth modality, ethical argument
123. PHILIP BOBBITT, Polyphonic Stare Decisis: Listening to Non-Article III Actors, 83 NOTRE DAME L. REV. at 93-119, which has not gained widespread acceptance but which I will touch on briefly in conjunction with the historical and prudential analyses below.
124. Cf. BOBBITT, Polyphonic Stare Decisis: Listening to Non-Article III Actors, 83 NOTRE DAME L. REV., at 7 (noting that the various types of constitutional argument; are really archetypes, since many arguments take on aspects of more than one type;).
125. U.S. CONST. art. I, § 5, cl. 3. The Constitution contains no reference to; executive privilege,; the; state secrets privilege,; or any other terms we now associate with government secrecy.
126. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 260 (Max Farrand ed., 1911) [hereinafter FARRAND].
127. U.S. CONST. art. I, § 9, cl. 7.
128. U.S. CONST. Id. art. II, § 3.
129. U.S. CONST. amend. VI.
130. Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MINN. L. REV. 1143, 1153-69 (1999) (providing numerous textual arguments why; the President does not possess the constitutional authority to command the means of ensuring the complete utilization of [his own constitutional powers];).
131. U.S. CONST. art. I, § 9, cl. 7 (;No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....;); see also id. art. I, § 8, cl. 1 (;The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States....;).
132. There is no specific textual basis for this power. Conventional wisdom derives it from a combination of the Necessary and Proper Clause, id. art. I, § 8, cl. 18, and the reference to the President's authority to appoint officers; established by Law; in Article II, Section 2, id. art. II, § 2, cl. 2, which carries the negative implication that the offices themselves must first be created by legislation. Whether and to what extent Congress may create executive agencies independent of the President is more hotly contested.
133. U.S. CONST. art. I, § 2, cl. 5; art. I, § 3, cl. 6.
134. U.S. CONST. art. I, § 8, cl. 18.
135. U.S. CONST. art. I, § 5, cl. 3.
136. U.S. CONST. art. II, § 3.
137. Thomas I. Emerson, Legal Foundations of the Right to Know, 1976 WASH. U. L.Q. 1.
138. Thomas I. Emerson, Legal Foundations of the Right to Know, 1976 WASH. U. L.Q. at 14
139. Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 ADMIN. L. REV., at 140 & n.40 (citing numerous works; argu[ing] in favor of a [First-Amendment-based] right to know information about the government;). Emerson himself drew heavily on Alexander Meiklejohn in developing this argument, though he parted company with Meiklejohn in important respects.
140. Thomas I. Emerson, Legal Foundations of the Right to Know, at 4-5, 14.
141. Thomas I. Emerson, Legal Foundations of the Right to Know, at 16-17.
142. Thomas I. Emerson, Legal Foundations of the Right to Know at 16. This is so because; [i]t is hard to conceive of any government information that would not be relevant to the concerns of the citizen and taxpayer.;
143. U.S. CONST. art. IV, § 4.
144. U.S. CONST. art. I, § 3, cl. 2 (Senators); art. I, § 2, cl. 1 (Representatives); art. II, § 1, cls. 2-3 (the President). In those settings in which information access bears on the ability of an individual or group to exercise its substantive rights, one might look also to the Due Process, Equal Protection, or Privileges and Immunities Clauses.
145. My understanding of comparative constitutional law on secrecy, and the examples I cite, derive almost entirely from Adam Samaha's valuable discussion of the subject. Cf. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV., at 923-32.
146. Cf. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV at 924.
147. Cf. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV. at 924 n.60 (alteration in original). According to Samaha,; at least two-dozen foreign constitutions now explicitly command some degree of public access to government-held information or records,; though these commands are often tempered by explicit access restrictions.
148. See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (elucidating the intratextualist interpretive methodology, which emphasizes recurring words and phrases as privileged sources of meaning).
149. U.S. CONST. art. I, § 5, cl. 3.
150. U.S. CONST. art. I, § 9, cl. 7.
151. U.S. CONST. art. II, § 3.
152. This point was not lost on the Framers. See Halperin v. CIA, 629 F.2d 144, 155-56 (D.C. Cir. 1980) (concluding that the debates surrounding the; from time to time; provision in the Statement and Account Clause; convey a very strong impression that the Framers... intended it to allow discretion to Congress and the President to preserve secrecy for expenditures related to military operations and foreign negotiations; (citation omitted)); JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS 52-53 (2007) (summarizing Elbridge Gerry's, Patrick Henry's, and George Mason's criticisms of the; from time to time; provision in the Journal Clause). The Journal Clause in the Articles of Confederation contained a similarly worded secrecy exception but required monthly publication. ARTICLES OF CONFEDERATION art. IX, cl. 7.
153. JOSH CHAFETZ, DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS, at 52.
154. For an oft-quoted statement of this traditional view, see Potter Stewart,; Or of the Press,; 26 HASTINGS L.J. 631, 636 (1975) (;The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.;).
155. See Letter from David J. Barron, Professor, Harvard Law Sch., et al., to Harry Reid, Majority Leader, U.S. Senate, et al. 2 (Jan. 17, 2007) [hereinafter Scholars' War Powers Letter], available at http://www.law.duke.edu/features/pdf/congress_power_letter.pdf (cataloguing the; extensive powers relating to war; expressly granted by the Constitution to Congress).
156. U.S. CONST. art. II, § 2, cl. 1.
157. U.S. CONST. art. II, § 2, cl. 2.
158. U.S. CONST. art. II, § 1, cl. 1.
159. U.S. CONST. art. I, § 1.
160. Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 THE WRITINGS OF JAME S MADISON, 1819-1836, at 103, 103 (Gaillard Hunt ed., 1910)
161. THE FEDERALIST NO. 70, at 424 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (high lighting the President's superior ability to provide; [d]ecision, activity, secrecy, and despatch; in general); THE FEDERALIST NO. 64, at 393 (John Jay) (Clinton Rossiter ed., 1961) (highlighting the President's superior ability to provide; secrecy and despatch; in the negotiation of treaties).
162. Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MINN. L. REV, at 1173-85.
163. Jeffery A. Smith, Recognition of a R ight to Know in Eighteenth-Century America 4 (Aug. 16, 2007) (unpublished manuscript, on file with author) (;[L]aw journal articles, textbooks, and other writings have concluded that the concept of a right to know was scarcely recognized, if at all, in the founding era.; (internal citations omitted)).
164. See, e.g., THE FEDERALIST NO. 49, at 313-14 (James Madison) (Clinton Rossiter ed., 1961) (;[T]he people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived....;).
165. See generally AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 5-53 (2005) (identifying popular sovereignty as the animating value of the original Constitution, as reflected in the Preamble's invocation of; We the People;)
166. LAURENCE H. TRIBE, THE INVISIBLE CONSTITUTION 28-33, 86-90 (2008) (identifying popular sovereignty as one of the; bedrock; constitutional principles recognized; by nearly everyone as binding elements of our nation's supreme law;).
167. Cf. N.Y. Times Co. v. United States, 403 U.S. 713, 716 (1971) (Black, J., concurring) (asserting that, in cases of conflict with the; general powers; granted to the government in the body of the Constitution, the relatively; specific and emphatic guarantees; added by the First Amendment should prevail per standard inferences of construction).
168. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY, at 28-53, 132, 301
169. MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 2-12 (1913).
170. Max Farrand, Introduction to 1 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 11-25.
171. See Halperin v. CIA, 629 F.2d 144, 156-62 (D.C. Cir. 1980)
172. MOYNIHAN COMMISSION REPORT, COMM'N ON PROTECTING AND REDUCING GOV'T SECRECY, at app. A
173. MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY, at 28-43, 54-155
174. Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV., at 273-76.
175. The classic statement of the structural method of constitutional interpretation is CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). In its attention to the overarching themes, aspirations, and design of our constitutional order, structuralism could be seen as a kind of high purposivism or; macroscopic prudentialism.;
176. PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION, at 74. For a provocative new critique of structural analyses that fail to ground their claims in specific constitutional text, see John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 HARV. L. REV. 2003 (2009). I take it that Manning would reject some of the interpretive moves made in this Part for operating at too high a level of generality.
177. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV., at 518-20.
178. Aziz Huq, Hold on There, Mr. President: It's Time to Put a Limit on Executive Privilege, CHI. SUN-TIMES, July 29, 2007, at B2
179. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 321 (1936) (quoting George Washington for the insight that excluding the House helps preserve secrecy in treatymaking); cf. supra Part II.A (explaining connections between numerosity and publicity).
180. United States v. Nixon, 418 U.S. 683, 705 (1974).
181. Akhil Reed Amar, America's Constitution and the Yale School of Constitutional Interpretation, 115 YALE L.J. 1997, 2005 (2006).
182. Philip Bobbitt describes prudentialism as; constitutional argument which is actuated by the political and economic circumstances surrounding the decision.; BOBBITT, supra note 94, at 61. This approach has clear affinities with, and in some formulations may be identical to, what others would term pragmatism.
183. There are also the standard arguments about institutional competence and the role of the courts that might lead a judge to decline to resolve a particular information-access dispute. These arguments are prudential too, but they do not provide any substantive basis for evaluating the constitutionality of the underlying secrecy.
184. Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting)
185. see also PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 17 (1991) (observing that prudential arguments are; likeliest to be decisive; in emergency situations). The other touchstone here is Abraham Lincoln's; all the laws, but one; line. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421, 430 (Roy P. Basler ed., 1953) (;[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?;).
186. JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELFGOVERNMENT 247 (2001).
187. See, e.g., Medellin v. Texas, 128 S. Ct. 1346, 1392 (2008) (Breyer, J., dissenting) (invoking; the workable Constitution that the Founders envisaged;)
188. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 34 (2005) (;In sum, our constitutional history has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty.;). Other Justices have similarly invoked workability as a constitutional norm. See, e.g., Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
189. Cf. United States v. Nixon, 418 U.S. 683, 711 (1974) (;Nowhere in the Constitution... is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.;).
190. 417 U.S. 817, 834 n.9 (1974).
191. 438 U.S. 1, 14 (1978) (plurality opinion).
192. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (plurality opinion).
193. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 at 589 (Brennan, J., concurring) (urging courts to ask whether the government process in question has; a tradition of accessibility; and whether public access; is important in terms of that very process;); see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-13 (1986) (conducting this two-part inquiry); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06 (1982) (same)
194. Heidi Kitrosser, Secrecy in the Immigration Courts and Beyond: Considering the Right to Know in the Administrative State, 39 HARV. C.R.-C.L. L. REV. 95, 108-25 (2004) (explaining that courts have generally taken Justice Brennan's test to be the controlling standard for resolving access claims).
195. Heidi Kitrosser, Secrecy in the Immigration Courts and Beyond: Considering the Right to Know in the Administrative State, 39 HARV. C.R.-C.L. L. REV, at 97-99, 103-12, 116-25.
196. Lower courts have split, for example, on whether and to what extent to recognize public access rights in administrative proceedings. See Heidi Kitrosser, Secrecy in the Immigration Courts and Beyond: Considering the Right to Know in the Administrative State, 39 HARV. C.R.-C.L. L. REV at 118-25.
197. Barenblatt v. United States, 360 U.S. 109, 112 (1959); accord McGrain v. Daugherty, 273 U.S. 135, 170-75 (1927). See generally William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. ILL. L. REV. 781, 788-803 (summarizing the doctrine).
198. Barenblatt, 360 U.S. at 111.
199. 418 U.S. 683, 705-13 (1974).
200. 345 U.S. 1, 7-12 (1953).
201. 484 U.S. 518, 527-30 (1988).
202. 333 U.S. 103, 111 (1948).
203. 299 U.S. 304, 315-29 (1936).
204. Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 ADMIN. L. REV.at 163-67
205. Cf. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV, at 939-40
206. David E. Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 YALE L.J., at 637-38.
207. Marshall Field & Co. v. Clark, 143 U.S. 649, 671 (1892).
208. U.S. CONST. art. I, § 5, cl. 1 (power to judge qualifications of members and to do business); id. art. I, § 5, cl. 2 (power to determine rules and to punish members).
209. Adrian Vermeule, Submajority Rules: Forcing Accountability upon Majorities, 13 J. POL. PHIL. 74, 79 (2005) (emphasis omitted). Adrian Vermeule provides incisive analyses of the Journal Clause in at 84-86
210. Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361, 410-22 (2004).
211. I say precise because; a smaller Number [than a majority of Members] may adjourn from day to day, and may be authorized to compel the Attendance of absent Members.; U.S. CONST. art. I, § 5, cl. 1. Of course, every supermajority voting rule could be reconceptualized as a submajority voting rule, and vice versa, if one simply inverts the object of the vote. (If it takes; two thirds of the Senators present; to ratify a treaty, U.S. CONST. art. II, § 2, cl. 2, then it takes one-third to defeat a treaty.) But it is still notable that the Constitution expressly sets a submajority threshold only once, in the Journal Clause.
212. As I write these lines, all of these things appear to be happening in response to President Obama's decision to withhold certain photographs of United States military personnel abusing detainees.
213. See Jeff Zeleny & Thom Shanker, Obama Reversal on Abuse Photos, N.Y. TIMES, May 14, 2009, at A1.
214. Mary M. Cheh, Judicial Supervision of Executive Secrecy: Rethinking Freedom of Expression for Government Employees and the Public Right of Access to Government Information, 69 CORNELL L. REV, at 723 (asserting that the most; substantial claim raised against the right of access formulation is that courts lack a principled way to apply or confine it;).
215. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
216. Mills v. Alabama, 384 U.S. 214, 218 (1966).
217. Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).
218. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).
219. U.S. CONST. amend. IV (;The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.;).
220. See generally Warrantless Searches and Seizures, 37 GEO. L.J. ANN. REV. CRIM. PROC. 39 (2008).
221. Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101, 127 (2008).
222. United States v. Nixon, 418 U.S. 683, 705 (1974).
223. See supra notes 101-105 and accompanying text.
224. THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 170 (Jonathan Elliot ed., 2d ed. 1891) (1836).
225. DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS 34 (1981).
226. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb- Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 772-803 (2008)
227. see also LOUIS FISHER, CONGRESSIONAL ACCESS TO NATIONAL SECURITY INFORMATION: PRECEDENTS FROM THE WASHINGTON ADMINISTRATION (2009), http://www.loc.gov/law/help/usconlaw/pdf/GW.2009.pdf (arguing that, contrary to recent executive branch claims, Washington-era precedents do not support the view the President was ever thought to have plenary and exclusive authority over national security information).
228. MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES, at 9-41 (discussing public acts and debates leading to the Convention).
229. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY, at 7, 17-18.
230. We do have a recent tradition of explicit congressional acquiescence in certain national-security-related secrets, such as; waived; programs and covert actions, that the President discloses only to a very select group from Congress, such as the; Gang of Eight.; See infra Part IV.B. Exactly how to characterize the depth of these secrets is a debatable question, and the answer may vary from case to case. When the vast majority of Congress (along with the general public) is clueless about a secret and the Gang of Eight lacks a meaningful ability to challenge it, the secret is best understood as deep. When many members of Congress understand the gist of a secret and the Gang of Eight can effectively represent their interests, the secret becomes significantly shallower. Both types of secrets raise constitutional concerns to the extent that the full legislative body is deprived pertinent information, but in the former case the concerns are much more acute.
231. See Michael J. Gerhardt, Non-Judicial Precedent, 61 VAND. L. REV. 713, 718-35 (2008)
232. Neal Katyal & Richard Caplan, The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 STAN. L. REV. 1023, 1067-68 (2008).
233. Mark Tushnet, Can You Watch Unenumerated Rights Drift?, 9 U. PA. J. CONST. L. 209, 220 n.53 (2006) (invoking Bobbitt's ethical argument).
234. Act of Nov. 21, 1974, Pub. L. No. 93-502, 88 Stat. 1561 (codified as amended at 5 U.S.C. § 552 (2006)).
235. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1862 (2006)).
236. Presidential Records Act of 1978, Pub. L. No. 95-591, 92 Stat. 2523 (codified as amended at 44 U.S.C. §§ 2201-2207 (2006)).
237. Federal Advisory Committee Act of 1972, Pub. L. No. 92-463, 86 Stat. 770 (codified as amended at 5 U.S.C. App. 2 §§ 1-16 (2006)).
238. 50 U.S.C. § 1802(b) (2006).
239. 5 U.S.C. § 552(a)(3)(A) (2006) (requiring agencies to make non-exempt records; promptly available to any person; upon appropriate request);§ 552(a)(3)(B) (requiring agencies to make records available in; any form or format requested; that is; readily reproducible;); id. § 552(a)(4)(B) (authorizing de novo review of complaints in federal court, with; the burden... on the agency to sustain its action;).
240. 5 U.S.C. § 552(a)(4)(A)(iii).
241. Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 ADMIN. L. REV., at 163-67
242. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV., at 937-41, 971-74.
243. 5 U.S.C. § 552(a)(3)(A) (2006) (requiring that requesters; reasonably describe[]; the records they seek). For a FOIA request to succeed, the agency must also comply in good faith and not, for example, destroy documents.
244. Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U. PA. J. CONST. L, at 1025-32 (observing that FOIA record requests demand precise framing and; prerequisite knowledge; to yield useful results).
245. S. REP. NO. 89-813, at 3 (1965). Courts have incorporated a space for deep secrecy within the FOIA process by allowing agencies to submit; Glomar; responses, which; neither confirm nor deny the existence of the requested records.; Phillipi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). Glomar responses may be necessary in some extreme cases. They threaten to undermine the text and purpose of the Act when a court relies solely on the agency's representations and does not determine for itself whether the underlying documents are properly classified or whether any portion can be reasonably segregated and disclosed. It is not so much the public ignorance that Glomar responses maintain as the judicial abdication they invite that is inconsistent with FOIA. Even an uncritical acceptance of a Glomar response, however, provides some notice to the public and to Congress that an issue may warrant further investigation-setting the stage for the secret to become shallower over time.
246. On the history and significance of FOIA, see, for example, National Archives & Records Administration v. Favish, 541 U.S. 157, 172 (2004) (stating that FOIA facilitates; a structural necessity in a real democracy;); Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 16 (2001) (;In FOIA, after all, a new conception of Government conduct was enacted into law,; a general philosophy of full agency disclosure.'; (quoting Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989))); Ray v. Turner, 587 F.2d 1187, 1190-95 (D.C. Cir. 1978) (explaining the origins and effects of FOIA's foundational 1974 amendments)
247. ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE, at 14-17 (discussing FOIA's global influence)
248. Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 MINN. L. REV. 1137, 1161 (2002) (noting that all fifty states now have open-records statutes, most of them modeled on the federal FOIA). On FISA, see for example, 154 CONG. REC. S15734-37 (daily ed. Dec. 17, 2007) (statement of Sen. Kennedy) [hereinafter Kennedy FISA Speech] (extolling the history of FISA and asserting that; [i]n our; information age,'... FISA provides Americans a fundamental bulwark against Government tyranny and abuse;)
249. William C. Banks, The Death of FISA, 91 MINN. L. REV. 1209, 1216-33 (2007) (tracing the origins of FISA)
250. Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV, at 157-60 (defending FISA's critical role in safeguarding Fourth Amendment values). William Eskridge and John Ferejohn have popularized the term; super-statute; to describe a law or series of laws that: (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does; stick; in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law-including an effect beyond the four corners of the statute.
251. William N. Eskridge Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1216 (2001). This is not the place to develop the argument, but FOIA and (more debatably) FISA could easily be said to meet these conditions. Passed in its modern form after the Watergate scandal and the Vietnam War, FOIA introduced a norm of open access to government documents that has commanded deep public loyalty, taken on a quasi-constitutional valence, and spawned a vast network of imitator laws at all levels of United States government and in democracies around the world. FOIA is such a good example of a super-statute that it is surprising no one has assigned it the label yet. FISA has not influenced public culture to the same extent-which is to be expected given that, unlike with FOIA, members of the public have no direct role to play in the statute's operation. But at least until the George W. Bush administration, every President, Congress, and court had accepted FISA
252. Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV, at 159, and the statute is widely seen as having established norms of privacy, legality, and interbranch cooperation that transcend its specific context. The belief that FISA represents something greater than a typical law helps explain why the Bush administration's noncompliance provoked such intense public anguish.
253. Bob Herbert, Who Will Stand Up for the Constitution?, N.Y. TIMES, Jan. 19, 2006, at A23.
254. William N. Eskridge Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J, at 1275 (asserting that; [t]here is, and long has been, an intermediate category [between ordinary and higher law] of fundamental or quasi-constitutional law; and that; super-statutes; have served this function since the twentieth century)
255. see also LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 31-35 (2004) (similar for; foundational statutes;)
256. Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737 passim (2007) (similar for; landmark statutes;)
257. Gerhard Casper, Constitutional Constraints on the Conduct of Foreign and Defense Policy: A Nonjudicial Model, 43 U. CHI. L. REV. 463, 481-92 (1976) (similar for; framework legislation;).
258. This is a somewhat different sort of black hole from the one explored by Adrian Vermeule in his recent article on Carl Schmitt.
259. Adrian Vermeule, Our Schmittian Administrative Law, 122 HARV. L. REV. 1095 (2009). Vermeule argues that United States administrative law is Schmittian, in the sense that it contemplates emergency situations in which the executive will be able to operate free from effective legal constraint. The suggestion here is that even in these situations the Constitution imposes a minimal (and not necessarily ex ante) duty of interbranch publicity, that it proscribes informational black holes. Whether that duty can be enforced by Congress or the judiciary is a separate question.
260. I thank Eric Citron for the event horizon metaphor.
261. See Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 ADMIN. L. REV. 109, 113-14 (1996). Neal Devins adds to the list; matters of current military significance.;
262. Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 ADMIN. L. REV. at 114. For reasons explained below, see infra notes 210, 231-247 and accompanying text, I believe this is generally incorrect. One might also add the President's Opinions Clause power to require that principal officers of executive departments deliver opinions relating to the duties of their offices. U.S. CONST. art. II, § 2, cl. 1. This power does not inherently generate publicity as do the powers mentioned in the main text, but it is also less significant consequentially. It is purely administrative-the power to force internal discussion of an idea, not to move an idea toward consummation.
263. MOYNIHAN COMMISSION REPORT, COMM'N ON PROTECTING AND REDUCING GOV'T SECRECY, REPORT, at 15
264. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV, at 729-50.
265. Akhil Reed Amar, America's Constitution and the Yale School of Constitutional Interpretation, 115 YALE L.J., at 2005.
266. MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNTABILITY, at 156-69
267. Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 ADMIN. L. REV., at 126-37
268. Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar.-Apr. 1982, at 14, 19.
269. See, e.g., Webster v. Doe, 486 U.S. 592, 621 (1988) (Scalia, J., dissenting) (noting; the political damage; that assertions of executive privilege; often entail[];); Marshall, supra note 156, at 811 (;[B]ecause of the media, the purported trump card in the President's hand, the claim of executive privilege, is actually a joker.;).
270. Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 ADMIN. L. REV., at 109.
271. See, e.g., U.S. CONST. art. II, § 1, cl. 8 (Oath Clause).
272. See U.S. CONST p. 305.
273. Underlying the First Amendment right of access to criminal trials,; Justice Brennan declared in the most thoroughly reasoned majority opinion in this series,; is the common understanding that; a major purpose of that Amendment was to protect the free discussion of governmental affairs'; and thereby; to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
274. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring).
275. Richmond Newspapers, 448 U.S. at 589 (Brennan, J., concurring).
276. As Heidi Kitrosser persuasively points out, Justice Brennan's test also is not well engineered to vindicate the theory of the First Amendment that purportedly grounds it. Kitrosser, supra note 153, at 114.
277. 273 U.S. 135 (1927). 227. Id. at 174.
278. Watkins v. United States, 354 U.S. 178, 200 n.33 (1957) (quoting WOODROW WILSON, CONGRESSIONAL GOVERNMENT 303 (1885)).
279. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 509 (1975).
280. Barenblatt v. United States, 360 U.S. 109, 111-12 (1959); accord Kilbourn v. Thompson, 103 U.S. 168, 192 (1880); see also supra note 156 and accompanying text (listing the other substantive constraints).
281. William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. ILL. L. REV., at 800-03.
282. William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. ILL. L. REV. at 802 (citations omitted).
283. William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. ILL. L. REV. at 802-03.
284. Tenney V. Brandhove, 341 U.S. 367, 377 n.6 (1951) (;;[I]t is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees....'; (quoting with approval WILSON, supra note 228, at 303).
285. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring).
286. The most obvious counterexamples are the Court's pardon power holdings. See Schick v. Reed, 419 U.S. 256, 266 (1974); Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866); see also Barron & Lederman, supra note 187, at 728 & n.115 (discussing these cases and concluding that Congress likely retains some power to; affect the President's pardoning practices,; as through; disclosure requirements and bribery restrictions [for] those who lobby the President for pardons;). As explained above, the pardon power generates publicity as a necessary incident of its exercise, and therefore permits only shallow consummated secrecy.
287. Morrison v. Olson, 487 U.S. 654, 693 (1988).
288. Mistretta v. United States, 488 U.S. 361, 382 (1989). 239. United States v. Nixon, 418 U.S. 683, 706-07 (1974).
289. United States v. Reynolds, 345 U.S. 1, 8 (1953) (;The court itself must determine whether the circumstances are appropriate for the claim of privilege....; (footnote omitted)). The Reynolds Court also observed cryptically that; broad; assertions of the privilege, whereby executive officials claim the; power to withhold any documents in their custody from judicial view if they deem it to be in the public interest,; have; constitutional overtones.; Id. at 6.
290. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 591-92 (2006); Hamdi v. Rumsfeld, 542 U.S. 507, 582 (2004) (Thomas, J., dissenting); Afroyim v. Rusk, 387 U.S. 253, 256 (1967); Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964).
291. Hamdi, 542 U.S. at 536 (plurality opinion).
292. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring); Scholars' War Powers Letter, supra note 123, at 2-5 (documenting the Court's consistent stance that the President must comply with applicable statutory limits in wartime); see also FISHER, supra note 187, at 7 (asserting that none of the cases typically cited by the executive branch in secrecy disputes; supports the view that the President's authority over national security information is in any sense plenary or exclusive;)
293. Mark D. Rosen, Revisiting Youngstown: Against the View That Jackson's Concurrence Resolves the Relation Between Congress and the Commander-in-Chief, 54 UCLA L. REV. 1703, 1706-07 (2007) (observing that the motivating assumption behind Youngstown categories two and three is a conflict-sorting principle of; categorical congressional supremacy;-the principle that; wherever congressional power overlaps with antecedent presidential powers, congressional action categorically trumps;-and that in national security policy as in virtually every other area, the Court has established a constitutional norm of; overlapping governmental authority; rather than strict departmentalism).
294. Morrison v. Olson, 487 U.S. 654, 693-94 (1988) (quoting Nixon, 418 U.S. at 707). 245. Rosen, supra note 243, at 1735.
295. Mistretta v. United States, 488 U.S. 361, 381 (1989) (characterizing the Court as having consistently adopted a; flexible understanding of separation of powers;).
296. Youngstown, 343 U.S. at 614 (Frankfurter, J., concurring) (quoting Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting)); id. at 629 (Douglas, J., concurring).
297. Cooper v. Aaron, 358 U.S. 1, 18 (1958).
298. Youngstown, 343 U.S. at 638 (Jackson, J., concurring).
299. What happens when the secret-keepers believe none of these options is feasible? And by what standard should feasibility be measured? A rigorous answer lies beyond this Article's scope, but the analysis above suggests some rules of thumb: it will generally be less objectionable for an executive branch component to keep outsiders in the dark about the existence of a policy to the extent the secret-keepers have clear positive authority to act in the area, there is a crisis situation, the policy's aims are narrow and uncontroversial, the potential costs of disclosure are severe, and the secret-keepers acknowledge what they have done as fully, broadly, and quickly as possible after the fact.
300. Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks omitted). Seth Kreimer provides exceptionally rich celebrations of FOIA's ability to facilitate and authenticate government disclosures in Kreimer, supra note 74, and Kreimer, supra note 78.
301. See supra notes 201-202 and accompanying text. While FOIA's requirement that users; reasonably describe[]; the records they seek, 5 U.S.C. § 552(a)(3)(A) (2006), could be liberalized, the results would quickly overwhelm agencies and users alike. Some manner of framing requirement is a practical necessity in a requester-driven disclosure regime. To the extent we want to force agencies to reveal high-level policy decisions, as opposed to specific records reasonably described, public disclosure requirements are preferable to individualized FOIA requests.
302. MINORITY STAFF OF H. COMM. ON GOV'T REFORM, 108TH CONG., SECRECY IN THE BUSH ADMINISTRATION, at 2-31.
303. Seth F. Kreimer, Rays of Sunlight in a Shadow War: FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency, 11 LEWIS & CLARK L. REV., at 1215-16 (cataloguing recent criticisms)
304. see also Steven Aftergood, Reducing Government Secrecy: Finding What Works, 27 YALE L. & POL'Y REV. 399 (2009) (summarizing the literature on overclassification and recommending reforms).
305. But see infra notes 275-276 and accompanying text (discussing the possible use of specially-constituted courts, as in FISA).
306. The latter move is one of the key prescriptions of the leading judicial secrecy bill in Congress, the State Secrets Protection Act, S. 417, 111th Cong. (2009). See S. REP. NO. 110-442, at 11-12, 20-25 (2008) (explaining why the bill; forbids judges from dismissing cases at the pleadings stage on the basis of the privilege;).
307. For interesting variations on this idea, see Mary M. Cheh, Judicial Supervision of Executive Secrecy: Rethinking Freedom of Expression for Government Employees and the Public Right of Access to Government Information, 69 CORNELL L. REV., at 730-34
308. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV., at 960-63.
309. See supra Part III.C.2.e (final paragraph) (explaining the anti-ignorance principle); see also supra Part III.C.2.c (arguing that the Constitution proscribes informational black holes).
310. See Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2341 (2006). According to Katyal, executive-congressional reporting requirements; have gone without much scholarly analysis.;
311. 22 U.S.C. § 2364(a)(3) (2006).
312. 50 U.S.C. § 413b(c)(1) (2006).
313. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT, at 106-11; see also supra notes 46-47 and accompanying text (discussing the capacity of second-order publicity rules to reduce depth). While it may be quite difficult in some cases to draw a principled line between particular, first- order information and general, second-order information, any such effort would help reduce deep secrecy.
314. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV, at 923, 969.
315. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J., at 2341.
316. Letter from Heidi Kitrosser, Assoc. Professor, Univ. of Minn. Law Sch., to Edward M. Kennedy, Senator 3 (May 19, 2008), available at http://feingold.senate.gov/ ruleoflaw/testimony/kitrosser.pdf (endorsing a proposal suggested by Senator Feingold's written questions following Professor Kitrosser's testimony before the Senate Committee on the Judiciary, Subcommittee on the Constitution).
317. Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV., at 1599-1600
318. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1237-39 (2006). The Attorney General would have to identify the offending statute, but he would not have to identify specific policy decisions that may be implicated by his use of the avoidance canon. This proposal builds on an existing statute that requires the Attorney General to report to Congress whenever the Justice Department determines to refrain from enforcing a statute or complying with a judicial decision on the ground that the operative legal provision is unconstitutional. 28 U.S.C. § 530D (2006). Johnsen and Morrison do not address the possibility that the Attorney General would practice a kind of double avoidance, secretly invoking the avoidance canon in refusing to comply with the very law that requires him to report on his use of the canon.
319. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 103(c)(1), 122 Stat. 2436, 2460 (codified at 50 U.S.C. § 1871(c)(1) (West 2009)).
320. 50 U.S.C. § 1807 (2006).
321. ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE, at 220 (explaining the Swedish model). Internal working drafts are exempted from the register.
322. The existence of the CIA black sites was first disclosed by the Washington Post in late 2005, perhaps four years after the sites had been established. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at A1
323. see also JANE MAYER, THE DARK SIDE 148 (2008) (reporting that we still do not know any precise locations).
324. The infamous OLC; Torture Memo; that made these claims, Memorandum from Jay S. Bybee, Assistant Att'y Gen., U.S. Dep't of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf, was not leaked until the spring of 2004, nearly two years after its issuance.
325. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV, at 1238.
326. The OLC analysis supporting this determination still has not been made public. In former OLC head Jack Goldsmith's memorable telling,; [a]fter 9/11 [the Vice President and his Counsel] and other top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.;
327. JACK GOLDSMITH, THE TERROR PRESIDENCY 181 (2007)
328. see also ERIC LICHTBLAU, BUSH'S LAW 155-58 (2008) (describing the administration's; go-it-alone approach; in circumventing FISA).
329. Interview by Tim Russert with Richard Cheney, Meet the Press (NBC television broadcast Sept. 16, 2001), quoted in JANE MAYER, THE DARK SIDE, at 9-10. These lines had a double meaning. The counterterrorism effort, they insinuated, would be not only observationally dark but morally dark, not only opaque but unpleasant. A (vice-)head of state faced with an elemental threat to his country, Cheney was expressing the atavistic desire to operate without scrutiny or constraint. His imagery foreshadowed an intent to maintain through deep secrecy a dimension in which the normal rules do not apply.
330. The other natural choice is different departments within the executive branch. As the following Subpart explains, I believe that internal checks on deep secrecy are both independently attractive and practically essential, given that executive secret-keepers will not always have the time, will, or authority to run their plans by Congress. But it is important to bear in mind that internal consultation mechanisms will never be able to provide the degree of democratic or constitutional legitimacy provided by congressional (and judicial) mechanisms.
331. The historical unwillingness of the FISA court to say no to the executive might suggest additional limits on the efficacy of any nonpublic judicial check. Many commentators have called the Foreign Intelligence Surveillance Court a; rubber stamp; for approving nearly one-hundred percent of the surveillance orders submitted by the executive branch. See, e.g., Note, Shifting the FISA Paradigm: Protecting Civil Liberties by Eliminating Ex Ante Judicial Approval, 121 HARV. L. REV. 2200, 2206 (2008). These criticisms have some bite, but they overlook the extent to which the FISA court requires executive officials to modify orders before it will approve them, as well as the extent to which the mere existence of FISA court review forces intelligence agencies to internalize relevant laws, to focus resources on high-priority targets, to justify their practices, and to collaborate with the Justice Department. Sky-high approval rates do not necessarily imply a toothless or captured review mechanism.
332. 50 U.S.C. § 413b(c)(1), (2) (2006).
333. See MAJORITY STAFF OF H. COMM. ON THE JUDICIARY, 110TH CONG., REINING IN THE IMPERIAL PRESIDENCY 233, 253-63 (2009) [hereinafter CONYERS REPORT].
334. See MAJORITY STAFF OF H. COMM. ON THE JUDICIARY, 110TH CONG., REINING IN THE IMPERIAL PRESIDENCY. at 123-37 (characterizing the; battle; between Congress and the President over interrogation techniques as beginning with the leak of the Torture Memo in June of 2004).
335. MAJORITY STAFF OF H. COMM. ON THE JUDICIARY, 110TH CONG., REINING IN THE IMPERIAL PRESIDENCY at 146-55.
336. Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV., at 1596 (observing that the Bush OLC; released shockingly few of its legal opinions; in any form).
337. See CONYERS REPORT, 110TH CONG., REINING IN THE IMPERIAL PRESIDENCY, at 297-98 (describing efforts of the Bush administration to use Gang-of-Eight briefings beyond the limits imposed by 50 U.S.C. § 413b(c)(2)).
338. Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865, 885 (2007).
339. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255, 1327 (1988) [hereinafter Koh, Iran-Contra]
340. see also HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 164 (1990) [hereinafter KOH, NATIONAL SECURITY] (recommending legislative reforms to strengthen congressional consultation on covert action specifically). These regular meetings would allow for significantly more collaboration, earlier in the policymaking process, than the irregular Gang-of-Eight briefings that are currently used.
341. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J., at 1327.
342. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J, at 163-64
343. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J, at 1328-29.
344. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J, at 1327. More controversially, Congress could experiment with enhancing protections for whistleblowers who bring their concerns directly to a member, rather than to the press.
345. For a stimulating discussion of advisory commissions' promise and pitfalls, see Mark Fenster, Designing Transparency: The 9/11 Commission and Institutional Form, 65 WASH. & LEE L. REV. 1239 (2008).
346. Heidi Kitrosser, Congressional Oversight of National Security Activities: Improving Information Funnels, 29 CARDOZO L. REV., at 1071 (noting common complaints that; the Gang of Eight as a group lacks the power to take recourse in response to what they've been told; and; that the group's small size, combined with the absence of staffers in most briefings, makes meaningful deliberation and even adequate grasp of the issues unlikely;).
347. Cf. Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385, 1388 (2008) (noting the; comparative dearth of scholarship analyzing the internal allocation of authority within branches, particularly the executive branch,; as compared to scholarship analyzing the allocation of authority across branches (citation omitted)).
348. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J., 2314
349. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. at 2320-21. The demise of the congressional checking function, in Katyal's telling, is attributable to the massive growth of the federal bureaucracy, judicial abandonment of the nondelegation doctrine and the legislative veto, and aggressive presidential use of statutory interpretation, the veto power, and the party system.
350. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. at 2316, 2322, 2344.
351. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. at 2318.
352. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. at 2327.
353. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. at 2347-48
354. see also Jack M. Balkin, The Constitution in the National Surveillance State, 93 MINN. L. REV. 1, 24 (2008) (proposing that Congress; create a cadre of informational ombudsmen within the executive branch-with the highest security clearances-whose job is to ensure that the government deploys information collection techniques legally and nonarbitrarily;).
355. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J, at 2330-35.
356. Seth Kreimer similarly stresses the importance of the career bureaucracy for resisting secret abuses in Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U. PA. J. CONST. L., at 1018-19
357. Seth F. Kreimer, Rays of Sunlight in a Shadow War: FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency, at 1143, 1217.
358. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J, at 2328-29.
359. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. at 2345. There is nothing necessarily radical about using internal checking mechanisms in this way. The federal executive branch already has many; plural; characteristics, as reflected in the prevalence of independent agencies, entrenched bureaucrats, and interdepartmental jurisdictional redundancy. Many states have significantly more; fractured and dispersed; executives.
360. Helen Hershkoff, State Courts and the Passive Virtues: Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1896 (2001). Most state attorneys general, for example, do not serve at the will of the governor.
361. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446, 2448 (2006).
362. Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV, at 897-98.
363. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J, at 2317 (;When the State and Defense Departments have to convince each other of why their view if right,... better decision making results.;). Posner and Vermeule also contend that Katyal's proposals are; self-defeating,; in that a power- maximizing President would never; adopt or enforce the internal separation of powers to check himself,; and a feckless Congress would never force him to.
364. Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV, at 898. By; self-defeating,; Posner and Vermeule apparently mean; unrealistic.; Yet Posner and Vermeule do not explain why it is unrealistic to believe that Presidents would comply with internal checks for strategic or legal reasons, or to believe that the media and civil service could push Congress to patrol violations. More important, they fail to grapple with the fact that many of Katyal's proposals would not actually check the President himself, but would instead check certain of his subordinates so that no one faction can entirely control the flow of information he receives. That kind of checking might be attractive even to an ill-motivated executive.
365. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J., at 162-66.
366. WALTER E. DELLINGER ET AL., PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL 5 (2004), available at http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf.
367. DANIEL PATRICK MOYNIHAN, SECRECY: THE AMERICAN EXPERIENCE, at 16 (describing; B Teams;); ROBERTS, supra note 12, at 46 (describing; red teams;).
368. JACK GOLDSMITH, THE TERROR PRESIDENCY 181 (2007)
369. see also ERIC LICHTBLAU, BUSH'S LAW, at 22-23
370. JANE MAYER, THE DARK SIDE, at 66-68, 80-83, 121. On one notable occasion, the Secretary of State and the National Security Advisor learned of the War Council's decision to try terrorism suspects in military commissions after the fact, from a news report.
371. JANE MAYER, THE DARK SIDE, at 82.
372. On the role of Vice President Cheney, see generally BARTON GELLMAN, ANGLER: THE CHENEY VICE PRESIDENCY (2008).
373. On the outsized role of his counsel David Addington, see JACK GOLDSMITH, THE TERROR PRESIDENCY, at 76-90, 124-29, 169-71, 181-82
374. JANE MAYER, THE DARK SIDE, at 48-71, 300-04, 322-23.
375. See, e.g., JACK GOLDSMITH, THE TERROR PRESIDENCY, at 24 (describing OLC lawyer John Yoo's practice of bypassing the Attorney General)
376. Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV., at 1600 (noting that OLC appears not to have consulted with the Justice Department's Criminal Division before issuing the Torture Memo); see also OFFICES OF INSPECTORS GEN. OF THE DEP'T OF DEF. ET AL., UNCLASSIFIED REPORT ON THE PRESIDENT'S SURVEILLANCE PROGRAM 10, 30 (2009), available at http://judiciary.house.gov/hearings/pdf/IGTSPReport090710.pdf (explaining that Yoo was the only OLC official; read into; the President's domestic surveillance program for nearly two years and reporting the DOJ Inspector General's conclusion that; it was extraordinary and inappropriate that a single DOJ attorney... was relied upon to conduct the initial legal assessment of the [program];).
377. See JACK GOLDSMITH, THE TERROR PRESIDENCY, at 181-82
378. ERIC LICHTBLAU, BUSH'S LAW, at 138
379. JANE MAYER, THE DARK SIDE, at 68-70.
380. Something like this might be the meaning of Adam Samaha's curious statement that; [t]here is one proper purpose for which informal channels of disclosure are uniquely suited: combating deep secrecy.; Samaha, supra note 51, at 948. Or perhaps Samaha just means that there is nothing like an old-fashioned leak for exploding a deep secret. As the previous Subparts reflect, I do not agree with the implication that formal channels are unsuitable or unhelpful for combating deep secrecy.
381. WALTER E. DELLINGER ET AL., PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL.
382. WALTER E. DELLINGER ET AL., PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL at 2.
383. See NAT'L COMM'N ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 417 (2004) (recommending that intelligence agencies promote; a; need-to- share' culture of integration;).
384. Cf. supra note 64 and accompanying text (positing links between the depth of state secrets and the likelihood of leaks).
385. SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, FOREIGN AND MILITARY INTELLIGENCE, S. REP. NO. 94-755, at 12 (1976).