New York University Public Law and Legal Theory Working Papers

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Nations throughout the world permit executive officials to maintain secrecy in matters touching “national security.” And secrecy’s potential for eroding democratic values is growing as conceptions of national security expand. The U.S. Freedom of Information Act (FOIA) offers tools to resist that trend. The present paper, prepared for an International Symposium on “Freedom of Information and Governmental Transparency,” examines FOIA practice in national-security cases. Although U.S. courts do not always pursue their FOIA responsibilities aggressively, they frequently succeed in forcing the release of significant, previously classified material. An active judicial check on national security secrecy therefore is not impractical. The disappointments of judicial oversight result primarily from misplaced reverence for executive expertise, a misconception that legislation can address. Judicial oversight of unjustified secrecy is feasible and legitimate, even in highly sensitive national security matters.

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