Secret Reason-Giving.

Author:Deeks, Ashley S.

ARTICLE CONTENTS INTRODUCTION 615 I. THE PARAMETERS OF PUBLIC REASON-GIVING 619 A. The Contexts for Public Reason-Giving 619 1. Judicial Reason-Giving 620 2. Agency Reason-Giving 620 B. The Audiences for Public Reason-Giving 621 1. Audiences for Judicial Reason-Giving 622 2. Audiences for Agency Reason-Giving 624 C. The Virtues of Public Reason-Giving 626 1. Improving Decisional Quality 627 2. Promoting Government Efficiency 628 3. Constraining Decision-Makers 628 4. Strengthening Decision-Makers' Legitimacy 629 5. Fostering Accountability 633 D. Reason-Giving's Skeptics 634 II. SECRET REASON-GIVING'S MANIFESTATIONS 636 A. Secret Judicial and Congressional Reason-Giving 638 B. Secret Executive Reason-Giving to Courts and Congress 640 C. Secret Intraexecutive Reason-Giving 646 1. Vertical Secret Reason-Giving 649 2. Horizontal Secret Reason-Giving 656 3. The Audiences for Intraexecutive Reason-Giving 660 a. Executive Actors 660 b. Foreign Allies and International Officials 662 c. The Notional Public 663 III. THE VIRTUES (AND PROBLEMS) OF SECRET REASON-GIVING 666 A. Comparing Public and Secret Reason-Giving 667 1. Improving Decisional Quality 667 2. Promoting Government Efficiency 670 3. Constraining Decision-Makers 671 4. Strengthening Decision-Makers' Legitimacy 672 5. Fostering Accountability 674 B. Problems with Secret Reason-Giving 675 C. The Comparative Importance of Secret Reason-Giving 679 IV. PROMOTING SECRET REASON-GIVING 683 A. Using Congress to Foster Secret Reason-Giving 683 B. Using Courts to Foster Secret Reason-Giving 687 C. Executive Self-Regulation 688 CONCLUSION 689 INTRODUCTION

Reason-giving--the process of offering justifications for a decision--is essential to our system of governance. When issuing rules, for example, agencies give and publish their reasoning in the Federal Register so that the public, particularly those affected by the proposed or final rules, can see it. Such public reason-giving may improve the quality of decisions, deter abuses of authority, and enhance fidelity to legal standards. (1) Further, this public reason-giving allows judges to evaluate whether the agency's reasons are legally sufficient. Public reason-giving is also important in the context of court opinions: judges usually supply reasons justifying the holdings in their decisions. These reasons allow both higher courts and the public to evaluate the quality of the decision. In these contexts, reason-giving goes hand in hand with the publicity principle--the Kantian idea that political decisions must be able to withstand public debate.

But what happens when the government cannot make public the reasons for its decisions? In the national security context, the government frequently makes decisions that affect individuals, such as whether to freeze someone's assets, block a foreign corporate acquisition, or authorize a particular covert action. But virtually all of those debates and decisions happen entirely inside the executive branch, often at a high level of classification. Does the government still provide reasons for its decisions in these settings, and, if so, who is the audience? Can secret reason-giving have the same beneficial effects as public reason-giving? In other words, how fundamental to reason-giving's virtues is the publicity principle? To what extent, if at all, does the audience for secret reason-giving serve as a proxy for the public?

This Article examines these questions, which have so far gone unexplored in legal scholarship. The Article first shows that secret reason-giving occurs frequently. All three branches of government engage in secret reason-giving, but this Article emphasizes secret reason-giving within the executive branch because the Executive has the widest range of authority and ability to act in the national security space. (2) The Executive sometimes provides secret reasons to Congress and the courts to justify a variety of national security programs. More surprisingly, the Executive also engages in secret reason-giving that remains entirely within the executive branch. Even though intraexecutive reasoning rarely reaches the courts, Congress, or the public, it is nonetheless directed at a variety of other audiences, including the officials executing policy decisions, future administrations, foreign allies, and a notional public that would judge the reasoning if it became known.

The Article then argues that secret reason-giving confers a variety of benefits, even if those benefits manifest themselves in a somewhat different way than in the public context. Unlike public reason-giving, the primary goal of secret reason-giving is not to facilitate effective review by outsiders. Nor is it intended to promote the transparency of government operations. Instead, secret reason-giving improves the overall quality and effectiveness of government decision-making and operations, constrains the decision-maker, and strengthens the decisionmaker's legitimacy.

Secret reason-giving is an underexplored constraint in the debate about the breadth of executive power in the national security space. (3) It may occur when Congress imposes reason-giving requirements by statute (which it frequently does) or demands secret reason-giving during briefings by national security agencies. It may also occur when the Executive imposes reason-giving requirements on itself for principled or instrumental reasons. If secret reason-giving can both check national security decision-making and improve the quality of the resulting decisions, all three branches of government should choose to expand and entrench its use.

Promoting secret reason-giving is consistent with the idea that it is possible to further the rule of law within the executive branch, even in the relatively unregulated national security context. (4) Neal Katyal, for example, has argued for institutional mechanisms that create checks internal to the Executive as a partial substitute for robust congressional oversight. (5) This Article identifies a new avenue by which to bring that possibility to fruition. As this Article shows, secret reason-giving occurs inside the Executive today, but it may not occur systematically. It may also occur more often in some agencies than others, depending on the agency's culture. It is in our collective interest for reason-giving to become a regular part of the secret decision-making process. Increased reason-giving--in both the policy and legal contexts--brings with it the kinds of virtues we seek in our government: coherence, regularity, predictability, and increased analytical rigor. Further, even though not all secret reason-giving necessarily implicates legal doctrine, it implicates rule-of-law values and--to the extent that it creates a check on the Executive--constitutional norms.

This Article has three goals. First, it seeks to bring to light the phenomenon of secret reason-giving and to sketch its parameters. Second, it analyzes secret reason-giving in view of what we know about public reason-giving. To that end, the Article examines how public and secret reason-giving differ in terms of audience, benefits, costs, and potency. Its third goal is normative: to argue that secret reason-giving offers a modest yet achievable way to impose systemic and salutary constraints on executive decision-making.

Part I evaluates the literature on public reason-giving, identifying the primary contexts in which government actors engage in public reason-giving and assessing the core virtues of such processes. Part II highlights the fact that a range of governmental reason-giving, especially related to national security decisions, happens in a classified setting. It examines the types of actors who give secret reasons, the nature of their reasons, and the audiences for those reasons. Drawing from the virtues of public reason-giving identified in Part I and armed with an understanding of the secret reason-giving ecosystem from Part II, Part III assesses the extent to which secret reason-giving shares some of the same virtues as public reason-giving. It concludes that providing secret reasons can advance many of those virtues, albeit in slightly altered and less robust ways. Part IV argues that, in light of the important benefits that secret reason-giving confers and the particular pathologies of national security decision-making, Congress, the Executive, and the courts should embrace the need for the Executive to give reasons in classified or privileged settings. It offers several ways to achieve that end.

To begin, it is worth defining what this Article means by executive "decisionmaking" and "reason-giving," particularly in the context of classified national security activities. "Decision-making" here refers to relatively formal decisions, generally memorialized in writing, on which some set of other government actors will rely to execute a program or take a position in litigation. "Reason-giving" refers to justifications offered in support of and accompanying a legal or policy decision, whether those justifications are required by statute, formal executive guidance, or informal executive practice.

When this Article uses the term "secret," it refers to information within the executive branch that is either formally classified or protected from release by executive privilege. Although the breadth of the Executive's use of secrecy has been the subject of extensive debate, (6) that is not this Article's focus. Instead, the Article assumes that some level of secrecy is necessary even in a democracy and does not address the persistent and important question of whether the U.S. government classifies too much information. Many legitimate, arguably critical, national security actions rely on reasons that cannot be publicized without defeating their purpose and execution. Such actions might include conducting a covert action to undercut an enemy state's nuclear program, electronic surveillance of a suspected foreign agent...

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