New York University Public Law and Legal Theory Working Papers

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Forthcoming in Secrecy, National Security and the Vindication of Constitutional Law, David Cole, Federico Fabbrini and Arianna Vedaschi, eds. (Edward Elgar Publishing, 2013)


Some secrecy in national security matters is appropriate and inevitable, but unilateral executive control over decisions whether to impose secrecy is not. Executive control over sensitive information presumes a unique executive expertise. Yet the executive branch is not the sole repository of the relevant knowledge and experience. Congress has considerable national security expertise, and courts have solid institutional capacities to elicit expertise. In any case, information-access judgments demand an appreciation for the value of both secrecy and transparency, and the ability to make fine-grained judgments that accommodate both. Yet national security officials are predisposed to abhor transparency. Courts offer not only the obvious advantage of independence from self-interested incentives, but also the rarely noticed point that they are superior in some essential forms of expertise.

This paper, a chapter in the forthcoming comparative law volume Secrecy, National Security and the Vindication of Constitutional Law (David Cole, Federico Fabbrini & Arianna Vedaschi, eds.), examines the expertise and incentives of executive, legislative and judicial officials, and uses that framework to assess possible approaches to oversight of decisions to impose secrecy. It deploys that perspective to propose a framework for effective oversight of executive branch judgments about access to national security information.

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