(Dys)Functional Secrecy

Abstract

The topic we have been asked to address is how secrecy presents an obstacle to civil and criminal litigation. The underlying assumption is that suppressing information affects the judicial system in detrimental ways. At some level, this is clearly true. Any student of national security law could provide ready examples. If the government refuses to confirm or deny that an individual has been a target of surveillance, it takes little by way of imagination to understand how standing doctrine may prevent litigation from moving forward. Pari passu, classified procedures and parallel construction may prevent criminal defendants from ever being able to challenge potentially unconstitutional provisions — much less evidence amassed against them. No more so is it difficult to see how judicially-created rules, such as state secrets privilege, impair the progress of civil and criminal cases. Between 2001 and 2009, the government asserted state secrets in more than one hundred cases, even as the doctrine’s shadow fell over dozens of others. Since then, there have been more than 200 cases involving claims that the suit cannot continue without revealing sensitive information. The doctrine has blocked complaints related to breach of contract, patents, trade secrets, fraud, and employment termination. It has prevented wrongful death, personal injury, and negligence suits from moving forward, as well as cases brought against telecommunications companies for acting outside the law; torture suits; environmental degradation claims; breach of contract suits; and defamation litigation. Even more pernicious are clandestine interpretations of the law that depart from ordinary standards and allow for significant powers to be assumed entirely beyond public scrutiny. When the Office of Legal Counsel (OLC) issues legal opinions that are binding on agencies, yet cloaked from public view (such as the John Yoo memo secretly approving the use of torture), or when the National Security Division (NSD) secretly embraces a sui generis interpretation of the law (as it did in the bulk telephony metadata collection program), the fact that these interpretations are hidden from public view prevents those harmed from bringing legal challenges. The issue is thus not just whether secrecy may have a harmful impact on civil and criminal litigation. It is how secrecy affects the conduct of trials and the legal system writ large. In other words, the problem with the topic is not that its underlying assumption is necessarily erroneous, but that the query is too narrow: it fails to question what we mean by “secrecy” and to fully consider its affect, ranging from conditions under which it may be beneficial to the legal system, to the impact of secrecy on the morality of law (and obedience to the law), as well as the rule of law. While many theorists consider secrecy inimical to the state, examination of its precise role has been extremely limited. This chapter, accordingly, lays out a functional theory of secrecy, considering its role in relation to four areas: deliberation, information security, law, and adjudicatory processes. Drawing particular attention to how secrecy operates in the realm of national security law, it posits that whether and to what extent cloaking information advances the interests of the liberal, democratic state varies according to how it operates in each category.