Re-Understanding the Pentagon Papers and Other Secrets? New Law Review Article Proposes New Framework for Government Secrecy

The Stanford Law Review‘s January 2010 issue includes Deep Secrecy, 62 Stan. L. Rev. 257 (2010), an article by recent Yale Law School grad David Pozen that proposes a new theoretical framework for understanding government secrets (pdf of article; earlier article draft on SSRN).

According to the Review’s abstract:

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

After tracing some of the existing constituional, structural, and theoretical analyses of government secrets, Pozen applies his new framework to point out that the deeper a secret, the smaller the group of people (and possibly dissenting views) available to deliberate about it.  Pozen notes that government can still keep the substance of some government actions as “shallow secrets” while allowing additional debate and deliberation, concluding that:

Even among the subset of government secrets about which the public knows nothing . . . the comparative insularity of the deeper secrets can pose a special threat to good governance, to liberal democratic values, even to the Constitution. We cannot and should not seek to prevent the executive branch from keeping secrets. We can and should seek to have them kept as shallow as possible.

Along the way, Pozen evaluates a number of the secrets kept by the Bush administration, including many that are discussed elsewhere on this website.  For Pozen’s take on the Pentagon Papers era, see p. 292 of the article where he describes the Vietnam and Watergate era as one of the first times in American history where scholars began to see the government’s asserted need for secrecy as implicating constitutional values.

DC Circuit State Secrets Decision

Secrecy News provides this report on a recent DC Circuit decision on the state secrets doctrine:

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege. The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma. The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004. But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case. “In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said. The Court presented its ruling as a straightforward application of established principles, including fairness to the parties. But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege. “The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.” The case was remanded to the district court level for further deliberation. See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007. Coincidentally, the American Bar Association this week adopted a resolution (pdf) urging that “whenever possible,” federal civil cases should not be dismissed “based solely on the state secrets privilege.” The ABA resolution also proposed a set of legislative changes designed “to encourage meaningful judicial review of assertions of the state secrets privilege” and to regulate use of the privilege. A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here.