Government Secrecy

There is a tension inherent in the idea of keeping secrets in a democracy. In democratic systems, governments act on behalf of and are answerable to the people, and are subject to oversight by citizens and the media. But not all of what the government does is ­-- or can be -- publicly revealed. How do we strike the proper balance between allowing the government to effectively provide security to its citizens using methods that cannot be revealed publicly, and ensuring that the government operates consistent with the law? This seminar will explore the ways in which each branch of government keeps secrets and whether structural and statutorily-created tools to check secret actions have proven effective. In the Executive Branch context, we will look at the role of classification and the ways in which external actors employ litigation to force the Executive to disgorge secrets. We then will study Congress’s role in enacting secret laws and overseeing secret Executive acts. Here we will use the recent Senate Intelligence Committee report on CIA interrogation as a case study. Courts, too, are called on to adjudicate cases that implicate government secrets; we will ask whether systems such as the Foreign Intelligence Surveillance Court serve their intended goals of providing effective but non-public oversight. Finally, we will examine the role of unauthorized disclosures of government secrets (that is, leaks) in altering the government secrecy ecosystem.