SSeeaattttllee UUnniivveerrssiittyy SScchhooooll ooff LLaaww DDiiggiittaall CCoommmmoonnss Faculty Articles Faculty Scholarship 2009 SSeeccrreeccyy aanndd DDeemmooccrraattiicc DDeecciissiioonnss Mark A. Chinen Follow this and additional works at: https://digitalcommons.law.seattleu.edu/faculty Part of the Civil Rights and Discrimination Commons RReeccoommmmeennddeedd CCiittaattiioonn Mark A. Chinen, Secrecy and Democratic Decisions, 27 QUINNIPIAC L. REV. 1 (2009). https://digitalcommons.law.seattleu.edu/faculty/149 This Article is brought to you for free and open access by the Faculty Scholarship at Seattle University School of Law Digital Commons. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Seattle University School of Law Digital Commons. Articles SECRECY AND DEMOCRATIC DECISIONS Mark A. Chinen* I. INTRODUCTION Secrecy to protect intelligence sources and methods arises often in the nation's discourse on several controversial security matters. Protective secrecy itself is controversial because it seems inimical to democracies, where open discussion and accountability serve as touchstones.' Citizens, to whom their government is supposed to be accountable, appear to be in a quandary. It seems with national security matters and the secrecy that often cloaks them, people "cannot evaluate some policies and processes because the act of evaluating defeats the policy or undermines the process" in question.2 Patrick Keefe suggests we digest concepts like national security "whole, to take them as undifferentiated and unexamined absolutes."3 The same holds true with secrecy to protect intelligence sources and methods. My purpose here is to unpack the sources and methods argument. There have been a number of explorations of this reason for secrecy, as well as secrecy and democracy more generally,4 but what I * Associate Professor, Seattle University School of Law. I would like to express my thanks to Charity Anastacio and Jeffrey Leeper for their research assistance for this project, and as always, to Robert Menanteaux, research librarian at the Seattle University School of Law. 1. Dennis F. Thompson, Democratic Secrecy, 114 POL. SCI. Q. 181 (1999). 2. Id. at 182. 3. PATRICK R. KEEFE, CHATrER: UNCOVERING THE ECHELON SURVEILLANCE NETWORK AND THE SECRET WORLD OF GLOBAL EAVESDROPPING xvi (2006). 4. Among many authors who have examined secrecy and democracy are SISSELA BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION (1982); PAT M. HOLT, SECRET INTELLIGENCE AND PUBLIC POLICY: A DILEMMA OF DEMOCRACY (1995); LOCH K. JOHNSON, AMERICA'S SECRET POWER: THE CIA IN A DEMOCRATIC SOCIETY (1989); William HeinOnline -- 27 QLR 1 2009 QUINNIPIAC LAW REVIEW [Vol. 27:1 hope to contribute to the debate is my belief that the argument for protective secrecy needs to be assessed on at least two levels. In a democracy, it is appropriate to ask about the extent to which democratic Values or processes guide the uses of secrecy. I argue in Part II that such principles and processes frame and legitimate questions about secrecy, but in and of themselves they do not always provide definitive guidance about the uses of secrecy to protect sources and methods. It appears a democratic government can accommodate uneasy compromises between openness and secrecy. The second level of inquiry is more technical and for the most part specific to sources and methods. In Part III, I point out that the protection of sources and methods can be a compelling reason for secrecy, but not always.5 Given general knowledge about certain intelligence sources and methods, and, to a lesser extent, differences in their vulnerability to countermeasures, the need for secrecy is not uniform. Further, the protection of sources and methods is only as important as the intelligence derived from them, which in turn is only as important as the role intelligence plays in policymaking. The value and influence of either can be modest. Additionally, the secrecy argument is akin to the precautionary principle, which in some contexts provides little help in decision-making. Finally, as is usually true when information asymmetries exist, secrecy creates inefficiencies and perverse incentives in the collection, processing, and dissemination of intelligence, which in the end allows the government to shift the costs of inaccurate information to citizens and yet remain unaccountable for those costs. In Part IV, I juxtapose the conclusions drawn from these two levels of inquiry and ask what can be learned from the fact that at best democratic principles and processes offer rough guidance on how to use secrecy, but that the secrecy argument itself is often unconvincing. As an initial matter, it means the relationship between democracy and protective secrecy is not one of abstract ideals against the concrete E. Colby, Intelligence Secrecy and Security in a Free Society, 1 INT'L SECURITY 3 (1976); Michael V. Hayden, Balancing Security and Liberty: The Challenge of Sharing Foreign Signals Intelligence, 19 NOTRE DAME J.L. ETHICS & PUB. POL'Y 247 (2005); Thompson, supra note 1; see also COMM'N ON PROTECTING AND REDUCING GOVERNMENT SECRECY, SECRECY, S. DOC. NO. 105-2 (1997), available at http://www.gpo.gov/congress/commissions/secrecy/index.html. 5. As I note in Part III, there are other reasons for protecting classified information from disclosure, which are beyond the scope of this paper. HeinOnline -- 27 QLR 2 2009 2009] SECRECY realities of national security. It also means it is proper to ask tough questions of proponents of secrecy-particularly when decisions of national moment are being considered, like going to war, or when individual civil liberties are at stake and one is determining whether the government is obeying laws designed to protect those liberties-and to heavily discount the secrecy argument when such questions are not satisfactorily answered. Lastly, it provides ways to assess how well elected representatives and others charged with oversight respond to those who hold and wield secrets. II. DEMOCRATIC PRINCIPLES AND PROCESSES AND SECRECY A. Democracy and the Dangers of Secrecy Amartya Sen argues that the most important development of the past 100 years has been the emergence of democracy "as the preeminently acceptable form of governance., 6 Similarly, in his remarks on the rule of law, J.H.H. Weiler states it is now generally accepted that obedience to law can "neither be claimed, nor justified, if the laws in question did not emanate from a legal system embedded in some form of democracy."7 Given this strong legitimating power, it is natural to ask whether democracy, either as an idea or in its incarnations, can help society make difficult choices, including how to use secrecy. Indeed, democracy and secrecy seem to be linked: the question of legitimacy boils down to whether citizens have a moral obligation to obey or to respect the laws and decisions of their government.8 Secrecy is useful to a society,9 but it also seems to threaten that very 6. Amartya Sen, Democracy as a Universal Value, J. DEMOCRACY, July 1999, at 3, 4. 7. J.H.H. Weiler, The Geology of International Law-Governance, Democracy and Legitimacy, 64 HEIDELBERG J. INT'L L. 547 (2004). But see Joshua Cohen, Is there a Human Right to Democracy?, in THE EGALITARIAN CONSCIENCE: ESSAYS IN HONOR OF G. A. COHEN 226, 226 (Christine Sypnowich ed., 2006) (arguing that non-democratic governments can claim legitimacy as long as they are responsive to the interests of their citizenry). 8. See Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis 15 EUR. J. INT'L L. 907, 908 (2004) (pointing out that "[t]he very idea of legitimacy develops clearer contours when connected to questions of obedience."). 9. Sissela Bok identifies three reasons why secrecy is useful to a society: deliberation, surprise, and confidentiality. BOK, supra note 4, at 175-76. By deliberation, Bok refers to the ability of government agencies (or any group) to consider a course of action before it is made public, out of a concern that pre-mature transparency will stifle the deliberative process. Id. at 175. Further, secrecy is sometimes needed to preserve the element of surprise in government actions. Id. at 176. Offshoots of these justifications include the need for secrecy in diplomatic relations, the development or abandonment of plans, and missions in wartime, see, HeinOnline -- 27 QLR 3 2009 QUINNIPIAC LAW REVIEW [Vol. 27:1 legitimacy. ° Does it matter therefore how secrecy is used in a democracy? Is it meaningful to speak of democratic and undemocratic uses of secrecy, such that we know when to allow secrecy and when to forbid it? Of course, these are hard questions. Democracy itself is an under- specified term" such that there is the danger of setting up a straw man. Since one must begin somewhere, however, consider John Dunn's argument that "the structure of modem representative democracy ... provides ...a practical basis through which to refuse to be ruled unaccountably and indefinitely against your will.' 12 He adds, "Less steadily and on far less egalitarian terms, it also provides a framework through which to explore what people should and should not attempt to '3 do as a community."' Much is packed into these two sentences. For Dunn, citizens must have some say in who governs, no matter how attenuated this ability might be, due to the delegation of power in large, modem democracies. Concomitant with say in governance are accountability and limitations on power. There is also Dunn's sense that democracy provides a space for communal decisions, although for Dunn not everyone has an equal voice in that space. Given this spare and highly qualified description of the term, it is not surprising Dunn doubts democracy's ability to help decide "what people should and should not attempt to do as a community." In his view, "Virtually none of the elements of an answer to that question can come from democracy as an idea."'14 This is not a propitious starting point, but it is worth asking in what sense Dunn could be right. The idea of having a say in who governs is accompanied by a web of interrelated concepts: equality, autonomy, meaningful consent, freedom from coercion, accountability, the protection of civil liberties, e.g., COMM'N ON PROTECTING AND REDUCING GOVERNMENT SECRECY, supra note 4, at 6-7, and the need to protect the privacy of innocent citizens. BOK, supra note 4, at 176; see also AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY? 4 (2004) (discussing justifications for secrecy in government). 10. Allen Dulles writes: "Free peoples everywhere abhor government secrecy. There is something sinister and dangerous, they feel, when governments 'shroud' their activities. It may be an entering wedge for the establishment of an autocratic form of rule, a cover-up for their mistakes." ALLEN DULLES, THE CRAFT OF INTELLIGENCE 237 (1963). 11. Weiler, supra note 7, at 547. 12. John Dunn, Getting democracy into focus, OPEN DEMOCRACY, Oct. 20, 2005, http://www.opendemocracy.net/democracy-opening/focus-2944.jsp (emphasis in original). 13. Id. 14. Id. HeinOnline -- 27 QLR 4 2009 2009] SECRECY as well as institutional features deemed necessary to enable self- government, such as free and fair elections, universal suffrage, etc. Two such ideas I focus on here stem from a general sense that persons are not bound to collective decisions unless they have in some meaningful way consented to be so bound.15 This in turn leads to concepts familiar in any system of agreement: agreements must be free from coercion or the inappropriate withholding of relevant information, or there is no real assent. Both concepts appear in a number of accounts of democracy. Take, for example, coercion. For Dunn, democracy as an idea "requires the systematic elimination of power (the capacity to make others act against their own firm inclinations) from human relations.,"16 Frank Michelman's "jurisgenerational" politics entail "a set of prescriptive social and procedural conditions such that one's undergoing, under those conditions, such a dialogic modulation of one's understandings is not considered or experienced as coercive, or invasive, or otherwise a violation of one's identity or freedom." 17 Of course, these and other scholars accept that some level of coercion is inevitable because, as Robert Dahl argues, the complete absence of coercion leads to anarchy. ' 8 Coupling the idea of democracy with representative government enables persons to enjoy, on the one hand, the economies of scale possible in large populations and territories (including those that go to security) and on the other, institutions that approximate democratic forms of government. 19 In modem democracies, persons have delegated decision-making power to their elected leaders. But the agency problems that arise with representatives, and the tenuous link between most citizens and their elected leaders- because of the size of the nation-state-make it equally sensible to argue that the average citizen has very limited ability to participate in, and 15. Either at a specific point in history, such as the ratification of a constitution, or as a necessary part of a theory of democracy. 16. JOHN DUNN, DEMOCRACY: A HISTORY 169 (2005). Dunn thinks it is impossible to order a society based on this idea. 17. Frank I. Michelman, Law's Republic, 97 YALE L. J. 1493, 1526-27 (1988). 18. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 37-51 (1989). 19. Id. at 28-30, 213-16. It is this delegation of authority that leads to institutions such as elected officials, free and fair elections, inclusive suffrage, the right to run for office, freedom of expression, access to alternative information, and associational autonomy. Id. at 221. HeinOnline -- 27 QLR 5 2009 QUINNIPIAC LAW REVIEW [Vol. 27:1I thereby meaningfully consent to, important decisions that impact her 20 life. It is precisely where the degree of delegation is high that the connection between coercion and access to relevant information becomes most salient. As Amy Gutmann and Denis Thompson put it, consensus requires people to give accessible reasons for decisions because "[t]o justify imposing their will on you, your fellow citizens must give reasons that are comprehensible to you."'2' Although some coercion may be inevitable in large democracies, the point where delegation of authority limns into authoritarianism is where there cease to be comprehensible reasons for exercises of authority. Such reasons include descriptions of states of the world that require exercises of governmental power to respond to them. Secrecy can, of course, be used to conceal overt forms of government coercion, but more subtle and widespread coercion can arise when meaningful discussion of public decisions requires an accurate assessment of a given situation, and secrecy is used to distort that assessment. It is not surprising then that Gutmann and Thompson begin their most recent account of deliberative democracy by discussing the lead-up to the Second Iraq War. This presents the hard case. "The decision to go to war, it would seem, is unfriendly territory for pursuing the kind of reasoned argument that characterizes political deliberation., 22 Gutmann and Thompson note that when the Bush Administration announced it would take military action against Saddam Hussein, it understood the need to justify its actions to the American people and to the world, and so in the months before the invasion, the Administration found itself in a heated debate with Congress, and later, the United Nations. The government argued that war was justified because it believed, based in part on classified information, that Saddam Hussein posed a threat to the United States and to international peace and security: first, because his 20. With important exceptions discussed in Part IV, this might particularly be the case with foreign affairs and national security. See, e.g., Robert A. Dahl, Can international organizations be democratic? A skeptic's view, in DEMOCRACY'S EDGES 19 (Ian Shapiro & Casiano Hacker-Cordon eds., 1999) (discussing a general lack of public involvement in foreign affairs issues). 21. GUTMANN & THOMPSON, supra note 9, at 4. John Dryzek, who also writes from a deliberative perspective, argues for democratic authenticity, measured by the degree to which social control takes place through communication that encourages reflection on one's preferences without coercion. JOHN S. DRYZEK, DELIBERATIVE DEMOCRACY AND BEYOND: LIBERALS, CRITICS, CONTESTATIONS 8 (2000). 22. GUTMANN & THOMPSON, supra note 9, at 1. HeinOnline -- 27 QLR 6 2009 2009] SECRECY regime was developing weapons of mass destruction, and second, because it was associated with terrorists who had attacked the United States. There was vigorous debate about those claims, and about the methods for responding to the purported threat, but such debate was "cut short" by the invasion in 2003.23 Subsequent events have proved neither of the two claims was true.24 Accurate assessments of information go to both what one might term democracy's substantive aspects, such as freedom from coercion, and its procedural aspects; here it is difficult to separate idea from institution. Again, what makes the process of opinion formation and the selection of policies both at the grass-roots level and in the legislature so crucial, particularly in highly plural societies, is its link to legitimacy: government decisions must be based on plausible reasons, and the process of deciding is circumvented when the reasons any branch of government gives for its actions cannot be verified or are not based in fact. Jtirgen Habermas notes: "Democratic procedure, which establishes a network of pragmatic considerations, compromises, and discourses of self-understanding and of justice, grounds the presumption that reasonable or fair results are obtained insofar as the flow of relevant information and its proper handling have not been obstructed. 25 What happens, then, when information flows are obstructed or mishandled? Gutmann and Thompson argue, "When a primary reason offered by the government for going to war turns out to be false, or worse still, deceptive, then not only is the government's justification for war called into question, so also is its respect for citizens. 26 At the extreme, using secrecy to withhold information that undercut reasons for choosing a particular policy also undermines the legitimate expectations of persons governed, which in turn undermines the legitimacy of those who govern them.27 23. Id. at 2. 24. See infra text accompanying notes 169-73. 25. JURGEN HABERMAS, BETWEEN FACTS AND NORMS 296 (William Rehg trans. 1996). Elsewhere Habermas writes: "Deliberative politics acquires its legitimating force from the discursive structure of opinion-and will-formation that can fulfill its socially integrative function only because citizens expect its results to have a reasonable quality." Id. at 304 (emphasis in original). 26. GUTMANN & THOMPSON, supra note 9, at 4. 27. Writing from a non-deliberative framework, Dunn states: "Governmental seclusion is the most direct and also the deepest subversion of the democratic claim .... The more governments control what their fellow citizens can know the less they can claim the authority of those citizens for how they rule." DUNN, supra note 16, at 185; see also John Dunn, HeinOnline -- 27 QLR 7 2009 QUINNIPIAC LAW REVIEW [Vol. 27:1 Deliberative democracy theorists have described well the adverse effects caused by the manipulation of information as a democracy determines policy. Habermas argues elite monopolization of relevant information distorts the communicative process, thereby preventing further democratization.28 Such monopolization involves far more than withholding information,29 yet it is easy to see how secrecy can have a distorting effect. As the public forms its positions, the government is but one of several competitors for public attention and approval, and given the malleability of public opinion formation, it can be argued that the withholding of relevant information will have little effect on that process-people will keep their opinions irrespective of facts. However, except in some circumstances discussed below, it would seem unlikely that participants in such a discourse would accept governmental failures to disclose information that could impact opinion formation. On the legislative level, decision-makers for the most part select and justify policies that have already been "discovered" through interactions in the public sphere.30 At the same time, legislators rely on preparatory work provided by the administration in this process of selection and justification.31 Again, these processes can be impacted by information flows controlled in part by secrecy. B. The Counterarguments 1. Secrecy and DemocraticI deals It is thus possible to argue that secrecy can be inimical to democracy both as a means of achieving meaningful consent and as a process through which a polity makes community decisions. Nevertheless, although secrecy can pose a danger to democracy, it is difficult to determine exactly when the danger is so great that secrecy must be prohibited. First, as others have pointed out, on the substantive Situating Democratic Political Accountability, in DEMOCRACY, ACCOUNTABILITY AND REPRESENTATION 329 (Adam Przeworski et. al. eds., 1999). 28. HABERMAS, supra note 25, at 318. Habermas, who relies on the work of Dahl on this point, argues: "Privileged access to the sources of relevant knowledge makes possible an inconspicuous domination over the colonized public of citizens cut off from these sources and placated with symbolic politics." Id. at 317. 29. It also includes the setting of the public agenda and the uses of information to assist an administration in steering the nation in particular directions. 30, HABERMAS, supra note 25, at 307. 31. Id. HeinOnline -- 27 QLR 8 2009 2009] SECRECY level, secrecy can be used to combat coercion. Oppressed groups often need secrecy to strengthen group cohesion and to allow for mobilization for action.32 The very act of forming democratic constitutions has required secrecy.33 More relevant to intelligence issues, if meaningful consent depends on a government providing its citizenry with accurate assessments of states of the world, what happens if the flow of information needed for such accuracy dries up because the sources and methods enabling that flow are disclosed and thereby evaded? This means it is not always possible to apply a rule that would prohibit as undemocratic secrecy that disables meaningful consent and to permit secrecy that does not. Sometimes decision-makers need information to assess an evolving national security problem, but as just discussed, they face the dilemma that disclosure of such information will stop future flows of information needed to assess and respond to subsequent evolutions of the same problem. This, of course, was what confronted those who broke the Japanese diplomatic codes prior to the attack on Pearl Harbor.34 One could argue that it is more advantageous from a democratic perspective to have a better-informed and therefore more meaningful decision in the present, and risk losing information 32. Cass Sunstein points out that several social movements, such as the civil rights and women's movements, were made possible by enclaves of marginalized persons who were then able to form positions and strategies within those particular groups. CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS Do 45-46 (2001). 33. Jon Elster, Deliberation and Constitution Making, in DELIBERATIVE DEMOCRACY 97, 109-11 (Jon Elster ed., 1998) (discussing the advantages and disadvantages of publicity in constitutional conventions). 34. By the eve of the United States' entry into the Second World War, U.S. cryptanalysts had broken Japanese diplomatic codes. This, and the subsequent decryption of Japanese naval codes, was an intelligence coup crucial to the war effort. HERVIE HAUFLER, CODEBREAKER'S VICTORY: HOW THE ALLIED CRYPTOGRAPHERS WON WORLD WAR II 3-4 (2003). Important decisions were taken on the strength of intelligence derived from the decoded intercepts, and of course, the source of that intelligence was highly classified. The Japanese diplomatic code had been broken in 1940, before the attack on Pearl Harbor, CHRISTOPHER ANDREW, FOR THE PRESIDENT'S EYES ONLY: SECRET INTELLIGENCE AND THE AMERICAN PRESIDENCY FROM WASHINGTON TO BUSH 105 (1995), and there were strong indications from the intercepts that the Japanese leadership was contemplating war with the United States. Id. at 110, 113-14; see also HENRY C. CLAUSEN & BRUCE LEE, PEARL HARBOR: FINAL JUDGMENT 42 (1992). Many factors contributed to the United States' inability to anticipate and prevent the attack, but one, some argue, was the failure to disseminate all relevant intercepts with those directly responsible for Pearl Harbor's defense, in part to protect Magic. That claim is controversial. Compare CLAUSEN & LEE, supra, at 300-01 (arguing that the U.S. military commanders should have been amply warned by what communications were provided to them) with GORDON W. PRANGE WITH DONALD M. GOLDSTEIN & KATHERINE V. DILLON, PEARL HARBOR: THE VERDICT OF HISTORY 278 (1986) (arguing that not all important intercepts were shared). HeinOnline -- 27 QLR 9 2009