Secrets and Leaks

The Dilemma of State Secrecy

Rahul Sagar

• Publisher: Princeton University Press
• Year: 2016
• Print ISBN: 9780691168180, 9780691149875
• eBook ISBN: 9781400880850
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Secrets and Leaks examines the complex relationships among executive power, national security, and secrecy. State secrecy is vital for national security, but it can also be used to conceal wrongdoing. How then can we ensure that this power is used responsibly? Typically, the onus is put on lawmakers and judges, who are expected to oversee the executive. Yet because these actors lack access to the relevant information and the ability to determine the harm likely to be caused by its disclosure, they often defer to the executive's claims about the need for secrecy. As a result, potential abuses are more often exposed by unauthorized disclosures published in the press.


But should such disclosures, which violate the law, be condoned? Drawing on several cases, Rahul Sagar argues that though whistleblowing can be morally justified, the fear of retaliation usually prompts officials to act anonymously--that is, to "leak" information. As a result, it becomes difficult for the public to discern when an unauthorized disclosure is intended to further partisan interests. Because such disclosures are the only credible means of checking the executive, Sagar writes, they must be tolerated, and, at times, even celebrated. However, the public should treat such disclosures skeptically and subject irresponsible journalism to concerted criticism.

Chapter 1

The Problem

How to Regulate State Secrecy?

In the introduction we noted that there is broad agreement that state secrecy is justified so long as it is used to protect national security and not to conceal wrongdoing. However, there is also broad agreement that in practice state secrecy has become the “all-purpose means” by which the presidency has “sought to dissemble its purposes, bury its mistakes, manipulate its citizens and maximize its power.”¹ Assuming this complaint is at least partially correct, it raises the question of why it has proven so difficult to regulate the employment of state secrecy. Why, in other words, has practice been able to diverge so far from principle?

The leading explanation places the blame on fairly recent developments. The presidency, Arthur Schlesinger argues, is responsible for transforming the “legitimate system of restriction” established by the Framers “into an extravagant and indefensible system of denial.” Because those who receive “prestige and protection” from secrecy control the classification system, he writes, concealment has “overridden its legitimate objectives.”² There is, however, something puzzling about this claim. How can the Constitution, otherwise revered for establishing checks and balances, have allowed the president a free hand when it comes to state secrecy? The culprits, according to Schlesinger, have been war and conflict, which have prompted deference from lawmakers and judges, and “unquestioning” loyalty from citizens, thereby ensuring that “the only control over the secrecy system” has come to be “exercised by the executive branch itself.”³

But this explanation only deepens the mystery. Did the Framers not foresee that war and conflict might open the door to extensive government secrecy? A number of scholars believe not. The Framers, they maintain, intended to construct a political system where secrecy would be a rare and short-lived exception rather than an enduring presence. This claim was first pressed by an earlier generation of scholars, including Schlesinger, Henry Steele Commager, Raoul Berger, and Daniel Hoffman, who took the view that the Framers supported the “principle of disclosure.”⁴ And it has since been reiterated by, among others, Geoffrey Stone, Robert Pallitto and William Weaver, David Pozen, and Heidi Kitrosser, who have declared that the Constitution is premised on a “philosophy of openness.”⁵

The claim that the Framers expected state secrecy to be the exception rather than the norm in American government has rightly been challenged in recent years.⁶ Abraham Sofaer, Mark Rozell, Stephen Knott, and Gabriel Schoenfeld, among others, have marshaled evidence showing that early administrations, which were led by prominent Framers, readily utilized covert action and withheld information from citizens and lawmakers. Even so, because these scholars have not examined in detail the examples and ideas that influenced the Framers, they have somewhat understated the case that can be made against the prevailing view. I cannot address this lacuna at length here, but even a brief overview of the broader intellectual and historical context will show that the Framers cannot be understood to have supported “the principle of disclosure” or “a philosophy of openness.”

There are, then, at least three reasons to be skeptical about the view that the Framers were leery of state secrecy. In the first place, we should bear in mind that the Framers undoubtedly knew that prior republics had readily employed secrecy. Though neither Athens nor Rome developed an infrastructure or corps dedicated to the collection and protection of secret intelligence, the Framers would have learned from the classical sources they knew well that the Athenians and Romans had utilized an array of sources and methods to obtain intelligence on an ad hoc basis, and that their leaders had made frequent, if often private, efforts to obtain secret intelligence when this was necessary and feasible.⁷

The Framers’ consideration of the history of modern republics would only have sharpened this understanding. The experience of the English Commonwealth would have been especially telling in this regard. In the century preceding the English Civil War, the business of intelligence in England had been transformed by the emergence of a new breed of officials who came to occupy the office of principal secretary.⁸ The men who filled this office—Thomas Cromwell, William Cecil, and Francis Walsingham—were renowned for their “peculiar knowledge” of “dangers both abroad and at home,” which they obtained by building an effective, far-reaching, and secretive “intelligence system” consisting of clerks, translators, archivists, code-breakers, forgers, and messengers, through whom the principal secretaries controlled a “shifting legion of freelancers” and dozens of foreign “correspondents.”⁹ Did a sense of republican propriety lead the officers of the English Commonwealth to spurn the methods and practices utilized by the principal secretaries? Far from it. These officials readily followed their Tudor and Stuart forerunners in cultivating a far-flung network of spies and correspondents.¹⁰ Indeed, they went further, secretly coordinating the publication of propaganda and institutionalizing the covert interception of mail.¹¹ The same holds true after the Glorious Revolution. Over the course of the eighteenth century, the executive in England (increasingly the prime minister rather than the monarch) immersed itself ever deeper in the business of intelligence, as can be discerned from the steady growth of public funding on this front. Under James I and Charles I, the funds made available to the secretaries of state under this head had been seven hundred pounds each; by 1786, the budget for intelligence was twenty-five thousand pounds.¹² These resources were used to cement the precedents established in the sixteenth and seventeenth centuries—as the Framers experienced firsthand during the Revolutionary War.¹³

A second reason to be skeptical about the claim that the Framers were wary of state secrecy is that many of the republican theorists they were familiar with endorsed it as valuable.¹⁴ Recall that the first major step toward the institutionalization of secret intelligence had actually been taken in the republican city-states of Renaissance Italy. Having discerned the value of information in navigating the treacherous world they inhabited, these city-states were among the first to post ambassadors abroad.¹⁵ As the primary mission of an ambassador was to communicate back to the chancery whatever intelligence he could obtain, the emergent enterprise of modern diplomacy naturally prompted calls for discretion, most notably in Francesco Guicciardini’s Dialogue on the Government of Florence; there it is asserted that informants are more likely to cooperate with a “closed regime” than an “open regime,” because no one “wants to reveal a hidden secret” in a place where “it will no sooner be said than publicized.”¹⁶

Even more striking are the claims put forward in the aftermath of the English Civil War. Confronted with the charge that representative assemblies (such as Parliament) were prone to indiscretion, the defenders of the English Commonwealth replied that these bodies could—and indeed should—maintain secrecy by delegating sensitive business to smaller bodies appointed by the people’s representatives. Thus we find James Harrington recommending in The Commonwealth of Oceana that those affairs that must be conducted in secrecy “for the good of the commonwealth” should be entrusted to a “Council of War.”¹⁷ Similarly, Marchamont Nedham argues in The Excellencie of a Free State that the “prudence, time, and experience” required to manage “secrets of state” are best obtained by entrusting such matters to an executive council.¹⁸ John Milton, too, recommends in The Ready and Easy Way to Establish a Free Commonwealth the establishment of a “Council of State” for the purposes of “carrying on some particular affairs with more secrecy and expedition.”¹⁹

The utility of state secrecy is appreciated in eighteenth-century republican literature as well. For instance, in A Short Introduction to Moral Philosophy Francis Hutcheson describes “secret and speedy execution” as one of the four points “to be aimed at” in constituting an ideal polity.²⁰ Meanwhile, David Hume argues in his “Idea of a Perfect Commonwealth” that the executive ought to be made “absolute” in the sphere of foreign affairs because “otherwise there could be no secrecy or refined policy.”²¹ Richard Price, that influential friend of the American revolutionaries, writes in his Additional Observations on the Nature and Value of Civil Liberty that what distinguished a free government from an ideal one was that the latter joined to the liberty enjoyed by the former the “dispatch, secrecy, and vigour” required to successfully execute the “will of the community.”²² And citing “the disclosure of public counsels and designs” as one of the “evils” of democracy, William Paley warns in The Principles of Moral and Political Philosophy that a well-ordered regime ought to guard against the sort of “officious and inquisitive interference with the executive functions” that would lead to the disclosure of “what it is expedient to conceal.”²³

Now, to be sure, there were, from the sixteenth century onward, a number of republican theorists who were troubled by state secrecy, especially after the Renaissance had shown it to be one of the foremost elements of arcana imperii (mysteries of state)—that body of stratagems by which rulers could maintain their rule over their unwitting subjects.²⁴ This was a point that one of the Commonwealth’s fiercest critics, Clement Walker, stressed when he charged that Charles I had been replaced not by a republican regime, but by “forty tyrants” (the number of members in the Commonwealth’s Council of State), who were “dispatching all affairs privately and in the dark, whereas Justice delights in the light, and ought to be as public as the common air.”²⁵ But the defenders of the English Commonwealth had a simple answer to this objection: secrecy, they argued, was necessary, and had been seen as such in Greece, Rome, and Florence too.²⁶ Note also that later republican critiques of state secrecy, such as Algernon Sidney’s famous riposte against arcana imperii in his Discourses Concerning Government, written just prior to the Glorious Revolution, were directed at the exercise of secrecy by absolute monarchs rather than republican magistrates. Indeed it would be strange if Sidney thought a republic ought to eschew secrecy, since in his view “the best Government” is that “which best provides for War.”²⁷

Certainly, not everyone was convinced by the argument from necessity. Over the long eighteenth century—a time of intricate diplomatic maneuvering and incessant war—the notion that state secrecy posed a standing threat to the public interest found subscribers. The most striking critique in this vein is Jeremy Bentham’s “A Plan for an Universal and Perpetual Peace,” wherein Bentham depicts the elimination of state secrecy as a prerequisite to the achievement of peace. “Between the interests of nations,” he writes, “there is nowhere any real conflict,” and where such conflicts appear, he argues, they can be traced to deliberate or inadvertent misunderstandings fostered by state secrecy.²⁸ Therefore, “if we think peace better than war,” he writes, then secrecy “can not be too soon abolished.”²⁹ Bentham was not the only one to think this way; this was a view shared by a diverse set of theorists, including the abbé de Saint-Pierre, Pierre-André Gargaz, the marquis de Condorcet, Immanuel Kant, and Jean-Jacques Rousseau. Though these writers did not discuss state secrecy at length, their various “peace plans,” which sought to replace diplomacy and intrigue with orderly international confederations, favored openness. Note, however, that prominent Framers explicitly rejected such proposals as impractical.³⁰

The third reason to doubt that the Framers were leery of state secrecy is that there is evidence to show that they viewed it as an essential element of statecraft.³¹ Certainly, a number of important texts from the Revolutionary period underscored the importance of state secrecy. John Adams’s “Thoughts on Government,” for instance, described secrecy as one of the properties “essential” to the exercise of executive power.³² In “The Genuine Principles of the Ancient Saxon or English Constitution,” a radical Whig writing under the name Demophilus observed that even the best government would be short-lived unless it provided for its self-defense that “dangerous, but necessary engine of state, a standing army, whose operations must be conducted with all possible secrecy and dispatch.”³³ And Theophilus Parsons’s remarkable report, “The Essex Result,” warned that “want of secrecy may prevent the successful execution of any measures, however excellently formed and digested.”³⁴

That the leaders of the Revolution appreciated state secrecy is evidenced most clearly, though, by the measures they introduced to preserve the confidentiality of proceedings in the Second Continental Congress, and by their use of covert action under the auspices of the Committee of Secret Correspondence, which was made responsible for an array of intelligence functions, including espionage, covert operations, and postal interception—activities that, in the words of the participants, called for “great circumspection and impenetrable secrecy.”³⁵ Notably, these measures remained in place even after the Revolutionary War had drawn to a close.³⁶ Another important piece of evidence in favor of a wider political consensus on the value of secrecy is provided by the adoption of Article IX of the Articles of Confederation, authorizing Congress to withhold from publication those proceedings “relating to treaties, alliances or military operations, as in their judgement require secrecy.”³⁷ Though the states proposed a ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Preface to the Paperback Edition
• Acknowledgments
• Who Watches the Watchers?
• Chapter 1: The Problem: How to Regulate State Secrecy?
• Chapter 2: Should We Rely on Judges? Transparency and the Problem of Judicial Deference
• Chapter 3: Should We Rely on Congress? Oversight and the Problem of Executive Privilege
• Chapter 4: Should the Law Condone Unauthorized Disclosures? Fire Alarms and the Problem of Legitimacy
• Chapter 5: Should We Rely on Whistleblowers? Disobedience and the Problem of Retaliation
• Chapter 6: Should We Trust Leakers? Anonymous Sources and the Problem of Regulation
• Conclusion: Bitter Medicine
• Notes
• Selected Bibliography
• Index