The Procedural Exceptionalism of National Security Secrecy

By Kwoka, Margaret B. | Boston University Law Review, January 1, 2017 | Go to article overview

The Procedural Exceptionalism of National Security Secrecy


Kwoka, Margaret B., Boston University Law Review


Introduction

When Daniel Ellsberg leaked to The New York Times the now-infamous Pentagon Papers, a 7000 page top-secret report documenting the history of U.S.-Vietnam relations, the government's response was swift: two days after the Times first published a story based on the leaked records, the united States sued the paper to enjoin further publication of the report's contents.1 Solicitor General Erwin Griswold, representing the United States before the Supreme Court, was tasked with convincing the Justices that disclosure would result in serious harms to national security.2 To that end, he submitted a secret brief to the Ccourt under seal that documented the eleven items contained in the Pentagon Papers likely to produce the most serious harm.3 Despite his best efforts, he lost the case and the Pentagon Papers became public.4 Yet, he later admitted: "I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat."5

Much more recently, in 2005, The Washington Post relied on leaked information6 in reporting the existence of a secret Central Intelligence Agency ("CIA") detention program used to house and interrogate suspected terrorists abroad.7 Immediately thereafter, congressional leadership called for an investigation, citing the leak's potentially "long-term and far-reaching damaging and dangerous consequences" and claiming that it "will imperil our efforts to protect the American people and our homeland from terrorist attacks."8 Nine years later, however, the Senate Select Committee on Intelligence released a more than five-hundred-page report detailing specific findings from its investigation of the program, now known as the Senate Torture Report.9 According to that report, the secrecy of the program hid various improper, illegal, and unethical actions, including "interrogation techniques that had not been approved by the Department of Justice or . . . authorized by CIA Headquarters" and the confinement of "individuals who did not meet the legal standard for detention."10 In fact, the Obama Administration had long since ended the CIA program, and President Obama himself has admitted that "we tortured some folks" held under its auspices.11 Remarkably, the Senate Torture Report concluded that the existence of the program-rather than the publicity of it-caused harm to the standing of the United States among foreign nations.12

Without doubt, some matters are legitimately withheld from the public on the basis that their disclosure would pose a threat to national security. It is easy to imagine harms that would likely result from the identification of undercover agents operating abroad,13 the disclosure of the particulars of how weapons systems operate, the current or planned movement of troops during a battle, or the specifics of an ongoing investigation of a suspected terrorist.14 Nonetheless, the poignant examples of the Pentagon Papers and the Senate Torture Report remind us that the government's assertion of a need for secrecy based on potential national security harms that would result from disclosure should not be unquestioningly accepted.

One locus in which national security secrecy claims arise with regularity is litigation. In fact, courts may be especially important institutions in curbing excessive executive branch secrecy precisely because of their independence from the political process.15 This role is heightened in light of Congress's notorious failure to exercise vigorous oversight; even when Congress has made forays into extending oversight, it has often been met with resistance if not outright deception by executive branch officials.16

Courts, moreover, are no strangers to evaluating all sorts of secrecy claims that arise, precisely because litigation is a public process in which liberal discovery is meant to provide wide (though not unfettered) access to underlying evidence in an effort to discover the truth of the disputed matter. …

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