Illegal secrets.

• Author: Condon, Jenny-Brooke
• Position: When executive action illegality should be precluded from attempts to maintain secrecy - Abstract through III. The Dangers of Illegal Secrets Defined, p. 1099-1135

Abstract

When can the government keep its illegal action secret? In spite of the strong incentive for government officials and institutions to hide unlawful conduct from the public and their demonstrated tendency to do so, both public information access doctrines and the broader normative discussion of government secrecy inadequately answer this question. The questionable legality and pervasive secrecy of recent national security activities-in particular, the National Security Agency's ("NSA's") collection of millions of Americans' phone records, the government's unilateral and self-serving decision to characterize illegal conduct like torture as an "intelligence method protected from public disclosure, and the government's position that it can secretly kill suspected terrorists through unmanned drone strikes abroad without public oversight of the claimed legal authority to do so-underscore the extent to which democratic accountability is undermined when government secrecy and the prospect of illegality converge. This Article examines when the illegality (as well as the possible illegality) of executive action should preclude government attempts to keep its conduct secret. Or, to put it simply, it examines when a government secret becomes an illegal secret.

In addressing the under-theorized relationship between secrecy and illegality with respect to government information control, this Article also examines the insufficiently acknowledged problem of shallow secrets that conceal illegal or potentially illegal government conduct. In recent years, the problem of illegal secrets has surfaced with increasing frequency and urgency. In a variety of Freedom of Information Act ("FOIA") cases, when members of the public have sought information about controversial and legally suspect government policies and programs courts have largely deferred to the Executive's claims that it is entitled to withhold information irrespective of whether the activities at issue violate the law. Indeed, numerous courts have expressly held that government illegality is irrelevant when evaluating the appropriateness of government secrecy decisions. Examining this troubling trend, this Article argues that the legality of secret government conduct is a vital consideration that must be prominent in an information disclosure regime premised upon the goal of democratic accountability. It therefore proposes that the established illegality of the underlying conduct sought to be exposed is a powerful basis for compelling disclosure of government information. Only in the most pressing and exceptional cases should executive claims of a national security priority present a paramount justification for withholding information from the public. This Article further posits that where there is a plausible allegation of illegality, courts must consider whether sanctioning government secrecy will thwart public debate regarding the lawfulness of the conduct concealed, such that the more plausible the allegation of illegality, the stronger the basis for disclosure.

Table of Contents Introduction I. Secrecy and Illegality: The Not-So Secret History. A. Secrecy at the Founding B. Secrecy and Illegality in the Watergate Era. C. Secrecy and Illegality: The Recent History. II. Conceptualizing the Problem of Illegal Secrets III. The Dangers of Illegal Secrets Defined. A. The Transparency Rationales B. Authoritative Visions of Truth. C. Legitimizing Illegality. D. The Case for Illegal Secrecy Examined IV. The Law of Secrecy and Transparency A. Information Access and the Constitution. 1. Public Access to Judicial Proceedings. 2. Press Limitations as Public Information Restrictions 3. Secrecy as Constitutional Power B. Secrecy by Statute. V. Secrecy and the Judicial Checking Function. A. CIA v. Sims B. Countenancing Illegal Secrets After Sims 1. CIA Torture 2. Warrantless Electronic Surveillance 3. Targeted Killing Through Drone Strikes Abroad. VI. Confronting Illegal Secrets A. Illegality Matters B. The Proposed Framework C. Overcoming Perceived Limitations of the Proposed Framework. Conclusion INTRODUCTION

Government secrecy and the abuse of power have long shared a symbiotic relationship. Too often, government secrecy enables legally questionable government action. (1) And when government actors violate the law, they reflexively embrace secrecy as a means of shielding their actions from public scrutiny and legal responsibility. (2) Some forms of official abuse, most notably torture, depend upon secrecy and inflict more suffering because of it. (3)

Indeed, as a global and historical phenomenon, when governments commit grave human rights violations or engage in other serious abuses of power, secrecy invariably provides space for such crimes to occur, and for victims silenced or denied public acknowledgment of their injury, secrecy necessarily serves as an additional tool of oppression. (4) Throughout U.S. history, secrecy has at times played a similarly nefarious role, shielding from public scrutiny controversial government policies, elected officials' embarrassing mistakes, and perhaps most significantly, illegal government action. (5)

In recent years, the question of whether the government should be entitled to keep its illegal action secret has emerged frequently in the context of national security policy. In the pattern now routinely followed in today's secrecy regime, the government regularly cloaks in secrecy the purported authorization for some of the most contentious and legally questionable policies of our time, including the treatment of detainees and interrogation policy, the targeted killing of suspected terrorists abroad, and most recently, the NSA's massive, warrantless electronic surveillance of millions of Americans. (6) The government also regularly withholds details regarding implementation of such policies, including information related to their efficacy and human costs. And irrespective of the legality of the government conduct concealed, courts have repeatedly turned back claims by members of the public seeking information about these activities and the policies informing them. (7)

Specifically, courts have allowed the government to keep secret documents regarding the CIA's use of waterboarding (8)--a technique long and widely considered to constitute unlawful torture, (9) and which the United States has previously prosecuted as a crime in domestic courts and military tribunals. (10) Courts have sanctioned the secrecy of the government's purported authority for killing suspected terrorists through drone strikes abroad, (11) even where the legality of such actions remains a hotly contested legal question. (12) Courts have also declared the legality of President Bush's warrantless electronic surveillance of U.S. citizens in contravention of the requirements of the Foreign Intelligence Surveillance Act ("FISA") (13) irrelevant to whether documents regarding the program should be disclosed to the public. (14) And more than a year before Edward Snowden leaked classified information regarding the massive scope of the NSA's warrantless surveillance program purportedly authorized by Section 215 of the Patriot Act, a district court ruled that the alleged bad faith of the government in misleading Congress about the scope of surveillance authorized by that law was irrelevant to whether the government could keep its legal interpretation secret. (15)

Thus, under prevailing law governing public access to government information, a remarkable principle is clear: our legal system is no more suspicious or demanding of government secrecy when it conceals patently unlawful conduct or potentially illegal government conduct than when secrecy conceals the legitimate workings of government. Indeed, courts have effectively declared disputes about the secrecy surrounding controversial and potentially illegal national security policies non- justiciable. (16)

This judicial deference to executive secrecy without regard to the lawfulness of the government's actions is cause for concern given that the ability to both conceal and enable government wrongdoing is secrecy's most illegitimate yet seductive feature. Given the symbiotic and historic relationship between secrecy and illegality, this Article argues that concerns about government illegality ought to play a greater role in the law regulating state secrecy. Some scholars have begun to recognize that the law should be more skeptical of government secrecy when it conceals potential illegality, but have not described at length why that is the case or how--under FOLA's existing disclosure framework or in other contexts like the state secrets privilege--the law should respond to the problem. (17)

This Article addresses this under-theorized relationship between secrecy and illegality with respect to government information control. It aims to identify when concerns about the legality of executive action should preclude government attempts to keep its conduct secret. Or, to put it simply, it examines when a government secret becomes an illegal secret. (18)

In addressing the illegal secrecy dilemma, this Article adds an important observation to the recent literature cataloguing the structural characteristics of government secrets and their corresponding dangers. Scholars have recently argued that the form of secrecy most dangerous and repugnant to the Constitution is what some alternately term "deep secrecy" (19) or "macro secrecy" (20)--that is, where the very existence of an executive secret is kept a secret as well. (21) Under this view, deep secrecy eliminates any possible check on the abuse of executive power and is thus far more threatening to the constitutional order than "shallow secrets" or "micro secrecy" regarding, for example, how the executive branch implements policy. (22)

The deep secrecy frame highlights the profound danger posed by secret national security programs and secret law. (23) This Article...