Secrecy in European Politics

Berthold Rittberger, Klaus H. Goetz

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367135164
• eBook ISBN: 9780429648854
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

Secrecy is a prevalent feature of politics within and among liberal democratic states, as well as in the relations between states and international organisations. However, surprisingly little research in political science has explored the effects of secrecy on policy making; the evolution of the regulatory frameworks that govern the use of secrecy; and the tensions between secrecy and transparency.

This fascinating volume examines secrecy in European politics across a range of EU and national settings and policy domains, exploring the technological, social and political developments which appear to signal the end of privacy and the rapid expansion of political secrecy in European multi-level settings. Consequently, the tensions between democratic accountability with its transparency requirements, and political secrecy, which is typically justified on grounds of effectiveness of state action, have become more marked and more politicised. Engaging with these developments, the authors focus on actors' motivations in secret politics; institutional perspectives that highlight contestation over secrecy norms; and organisational perspectives that emphasise the diversity of secrecy cultures.

This book will be of great interest to students, researchers and professionals of political science and law. It was originally published as a special issue of the journal West European Politics.

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Secrecy in Europe

Berthold Rittberger and Klaus H. Goetz

ABSTRACT
This article introduces a collection of papers devoted to the study of secrecy in European politics across a range of EU and national settings and policy domains. Academic interest in secret politics – those aspects of public activity intentionally concealed from the public eye – and the governance of secrecy – the political processes and regulatory frameworks governing secret keeping – is growing. This interest reflects technological, social and political developments that appear to signal the end of privacy and the rapid expansion of political secrecy in European multi-level settings. As a consequence, the tensions between democratic accountability, with its transparency requirements, and political secrecy, which is typically justified on grounds of effectiveness of state action, have become more marked and more politicised. Engaging with these developments, the contributions to this collection draw on actor- and interest-centred perspectives that focus on actors’ motivations in secret politics; institutional perspectives that focus on contestation over secrecy norms; and organisational perspectives that emphasise the diversity of secrecy cultures. Further research will benefit from paying special attention to a diverse range of inter-institutional and inter-organisational secrecy settings; to political contestation over secrecy and the regulatory regimes that govern it; and to the refashioning of public-private secrecy architectures.

Arguments about the justification of, and limits to, secrecy pervade European politics at both national and EU levels. For example, despite pressure by the EU on its member states to enhance transparency in the banking sector in the wake of the euro crisis, the German government and parliament are reluctant to release supervisory data relating to Germany’s banks to the public (Gandrud and Hallerberg 2018). Although the European Parliament has achieved advances towards further transparency of decision making in the Council, it has largely fallen short of restricting EU governments’ secrecy privileges in the Common Foreign and Security Policy (Rosén 2018). In the ‘fight’ against terrorism, governments have introduced targeted sanctions against individuals and are often reluctant to release classified information on the reasons for placing individuals on suspect lists. Such measures, which eschew transparency and legal recourse, pose a challenge to the protection of fundamental human and civil rights by supranational courts, such as the European Court of Justice and the European Court of Human Rights (Fabbrini 2018). With the accession to the EU, Western-style transparency mechanisms were transplanted to many Central and Eastern European countries, with the goal to render their intelligence apparatuses more transparent and accountable. However, the success of these measures in providing effective intelligence accountability is in doubt, not only in Central-Eastern Europe, but also in the ‘West’ (Aldrich and Richterova 2018). Secrecy, as these brief illustrations suggest, is a prevalent feature of politics within and among liberal democratic states, as well in the relations between states and international organisations. Yet, surprisingly little research in political science has explored the effects of secrecy on policy making; the evolution of the regulatory frameworks that govern the use of secrecy; and the tensions between secrecy and transparency.

Secrecy encompasses all those behaviours whereby one party intentionally conceals information from another (see Gutmann and Thompson 1998; Pfersmann 2006; Pozen 2010; Scheppele 1988). Political secrecy emphasises the politically motivated aspects of secrecy: secrecy-related behaviours, practices, and norms that affect political processes and outcomes (secret politics), as well as political decision-making structures, regulatory frameworks and rules that regulate the flow of politically relevant information (governance of secrecy). Until recently, scholarly interest in political secrecy has been confined to fairly narrow social sciences subfields, most notably intelligence studies. Moreover, academic scholarship on political secrecy has been eclipsed by an overarching interest in transparency, as witnessed by the literatures on public policy and administration (e.g. Hood and Heald 2006; see Meijer 2014 for an overview), EU politics (e.g. Abazi and Adriaensen 2017; Hillebrandt 2017; Hillebrandt et al. 2013; Lindstedt and Naurin 2010; Naurin 2007), public (international) law (e.g. Bianchi and Peters 2013), as well as the study of ‘good governance’ (see, e.g. De Fine Licht et al. 2014). This does not come as a surprise. Political transparency, the ‘conduct of public affairs in the open or otherwise subject to public scrutiny’ (Birkinshaw 2006: 189), has become an unquestionable normative standard as well as an aspiration on the part of political organisations for ‘good governance’. Political secrecy, in turn, tends to be conceived as the ‘dark side’ of transparency, and should be the exception to liberal democratic rule. To paraphrase Jeremy Bentham, secrecy ‘ought never to be the system of a regular government’.

Yet, political secrecy has always had its place in the conduct of democratic government: the state’s security secrecy privilege renders a certain amount of secrecy legally permissible, normatively acceptable, and – as some emphasise – even politically necessary, in order to avert harm from internal and external threats to state security. But secrecy also entails a tension of democratic rule: while democratic rule without transparency is unthinkable, delivering results is an equally important democratic value, and hence a certain degree of secrecy can be acceptable, if it helps bring about desired policy outputs and as long as it is democratically authorised and appropriately justified (Ansell and Torfing 2016; Gutmann and Thompson 1998). Thus, secrecy is not necessarily a ‘bad thing’, and transparency is not always virtuous. Scholarship has demonstrated that too much transparency can, under certain conditions, produce suboptimal outcomes, for instance by reducing the deliberative quality of political discussions (see, e.g. Naurin 2007). The tension between the transparency of the democratic process, on the one hand, and effective governance, which may be enhanced by secrecy and seclusion, on the other, constitutes one central theme of this special issue.

A second central theme concerns the expansion of secrecy in European politics. Secret politics and the governance of secrecy are playing an increasingly important role in the context of international co-operation as well as multi-level governance structures, such as the EU, in which political authority is shared and fused across jurisdictional levels. Hence, it is not only state bodies – such as ministries, agencies, parliaments, courts, or public auditors – that keep secrets. To the extent that states endow international, multi-purpose organisations with political agency to address joint problems that touch upon security sensitive issues, these organisations are likewise claiming and contesting secrecy. As a consequence, questions about exchanging and classifying sensitive information are gaining currency not only among states, but also in the relations between states and international organisations (see Galloway 2014). Moreover, secret politics and the governance of secrecy in a multi-level context pose new challenges for holding domestic and supranational power wielders to account, as well as for ensuring citizens’ rights (see Curtin 2014). Importantly, secrecy also expands sectorally. The ‘securitisation’ of public policies – the framing of issues as a potential ‘existential’ security threat – by now goes well beyond questions of ‘traditional’ security, as in defence, crime prevention and law enforcement. It has come to extend to many policy domains, ranging from migration, energy, climate change, critical infrastructures, to public health and finance (Hanrieder and Kreuder-Sonnen 2014; Huysmans 2000; Kreuder-Sonnen 2018).

A third concern of this special issue is to highlight different analytic lenses in the study of secret politics and the governance of secrecy: How does the EU’s multi-level governance structure affect the secrecy-induced trade-off between democratic transparency and policy effectiveness? What explains the design as well as changes to institutional architectures of secrecy? How does secret politics affect the ability of political actors to achieve their political objectives (and prevent others from achieving theirs)? How can secret politics be contained by oversight mechanisms and institutions? This paper discusses three analytical perspectives that offer answers to such questions and inform the contributions to this collection. Following an actor- and interest-centred approach, rooted in principal–agent theory, political actors – governments, executive agencies, legislators, but also external stakeholders and civil society groups – demand or challenge secrecy arrangements to the degree that it furthers their own policy or power political goals. The second approach adopts an institutional perspective and highlights how meanings and joint understandings of secrecy evolve and affect or, indeed, challenge existing arrangements that involve secrecy. The third analytical lens zooms in on the level of political and administrative organisations and their social and political environments, and explores if and how organisations modify their behaviour or resist demands from the external environment, for instance, to disclose or share information.

What drives the contemporary interest in political secrecy?

Unlike academic interest in political transparency, which has become a fixture in scholarship ranging from public law, public administration, public policy to political theory, research on political secrecy was – for a long time – a peripheral matter in political science, with few notable exceptions (see, for example, Birchall 2011). To this day, research on political secrecy does not constitute a well-defined theme in the study of European politics, furthered by a well-integrated scholarly community. Existing scholarship tends to focus on conceptual issues (what constitutes a secret?), as well as normative questions pertaining to justifications for, and the legitimacy of, political secrecy. Some claim, for instance, that political secrecy is an indispensable means of effective governance, e.g. to counter terrorism (see Neocleus 2002); others emphasise that (perceived and constructed) security threats have the potential to obscure highly problematic government practices (Aradau 2004). Still others problematise the negative effects of secrecy on democracy (e.g. Horn 2011) or policy effectiveness (Colaresi 2012, 2014), and discuss constitutional remedies to bring secrecy under control (e.g. Sagar 2013). Contributions in public law and political theory have taken issue with conceptual questions, proposing definitions of different kinds, degrees, and scopes of political secrecy (e.g. Pfersmann 2006; Pozen 2010; Scheppele 1988), while others explore the range of practices associated with secrecy and discuss their potential to fundamentally undermine transparency and ‘open government’ in otherwise democratic societies (Birchall 2011; Roberts 2006). The richest literature on secrecy is to be found in the study of (national) security intelligence. Intelligence is, obviously, central to the study of political secrecy, for (security) intelligence is a practice of information management, intended to enhance the security of the state or enable governments to stay in power (Gill 2010: 45; Johnson 2010). In sum, political secrecy is not a novel theme in academic research; but several socio-economic and political developments of the past decades are likely to give rise to a renewed focus on secrecy and its political implications.

Technological change and the data revolution

Over the past decades, we have witnessed an explosion in the generation of data about every aspect of the behaviour of private individuals. The question of who has access to these data and how they are to be used has become a central theme in the debate over transparency vs. secrecy. What is evident is that public agencies – openly or secretly – now have access to private information on a scale scarcely imaginable until recently. Moreover, regulatory frameworks for data protection have been increasingly watered down. Not only do executive agencies now collect and share airline passenger data, they also oblige many private companies, such as telecommunications or financial service providers, to save customer data and make it available to executive authorities (Lyon 2002). As has been highlighted in the context of the Snowden revelations, citizens’ digital communications are subject to virtually all-encompassing (secret) surveillance, with potentially detrimental effects to citizens’ privacy (De Goede 2014). Technological advances and the data revolution have gone hand in hand with states’ increasing reliance on private corporations to provide security-relevant information. Public authorities’ demands for storing telecommunications data, airline passenger information, or financial records on the servers of private companies have come to pose new challenges regarding the protection of citizens’ privacy as well as their right to access information. Most laws protecting privacy rights are designed to apply to public institutions, and privatisation challenges what was once clearly demarcated as a public function (Roberts 2006: 21‒2). However, at the same time as state and private actors hold ever-increasing amounts of data, information, and knowledge about the public, the technical ability of public institutions to keep data, information, and knowledge secret appears to be fundamentally challenged by professionalised hacking, leaking, and whistle-blowing, as exemplified by WikiLeaks and the Snowdon affair. As Patz (2018) shows, taking effective steps against leaking is difficult and may not even be a shared ambition within organisations that have formal codes in place to prevent it.

De-politicisation of security policies

The special status ascribed to security policy, making it the prerogative of the executive, also renders it particularly interesting for political elites’ attempts at de-politicising security-related issues (Waever 1995). Successfully framing an issue as a security problem allows policy-makers to remove it, at least partially, from the exigencies of the democratic political process and, instead, to advocate the adoption of extraordinary measures without too much political interference and opposition (Balzacq 2005; Buzan et al. 1998; see Kreuder-Sonnen 2018). In the context of the ‘war against terrorism’, states’ intelligence agencies and security apparatuses have witnessed a dramatic extension of their powers and capabilities, resulting in increasingly porous boundaries between military, police, and civilian intelligence. This development has led to new informational architectures of secrecy and challenged traditional arrangements for oversight and control, notably by parliaments and courts (Donohue 2010; Glennon 2014a, 2014b), while bolstering executive authority at the expense of transparency and ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• 1 Secrecy in Europe
• 2 Second order secrecy and Europe’s legality mosaics
• 3 Courts and the politics of secrecy: national security, human rights and the importance of supranational oversight
• 4 The economy of secrecy
• 5 Secrecy and the making of CFSP
• 6 Contestation and co-optation: why secrecy in EU external relations varies
• 7 Political secrecy in Europe: crisis management and crisis exploitation
• 8 Information sharing, secrecy and trust among law enforcement and secret service institutions in the European Union
• 9 Ambient accountability: intelligence services in Europe and the decline of state secrecy
• 10 Explaining variation and change in supervisory confidentiality in the European Union
• 11 Open Access: Leaking, leak prevention, and decoupling in public administrations: the case of the European Commission
• Index