New York University Public Law and Legal Theory Working Papers

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In national security matters, we give executive officials largely unchecked power to conceal from the public and even from Congress whatever information they choose to consider sensitive. We thus disconnect part of the essential machinery of democracy. Secrecy is nothing new, but in an era of transnational terrorism and expanded conceptions of what “national security” means, secrecy’s potential for eroding checks and balances is growing, even under a President ostensibly committed to greater openness in government. Democratic values and sound national security policy both suffer as a result.

This Article argues that information access is central to legitimate governance and that in matters involving classified information, we have needlessly constrained democratic processes, as a result of misdirected fears and misplaced reverence for executive expertise. Many capabilities necessary for sound secrecy decisions can be found only in Congress or the courts.

Discomfort with the executive information monopoly is increasingly evident in judicial decisions and legislative initiatives, but these acts of resistance remain halting and uneven. This Article attempts to give coherence to the often-tentative efforts by the other branches to claim a coordinate role. Building on congressional and judicial strengths, it develops an oversight framework more consonant with our constitutional design – an information democracy that combines robust national security safeguards with maximum feasible transparency and accountability.

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