National Security Secrecy: Comparative Effects on Democracy and the Rule of Law

Author name: 
Sudha Setty
Class Year: 

The sixteen years since the September 11 attacks have seen a massive increase in the authority granted to and taken by the federal government to exercise counterterrorism measures, but not a concomitant commitment to oversight and accountability. The result is too much secrecy allowing for abuses and inefficiencies to be covered up. When controversial and arguably illegal government actions occurred under the Bush and Obama administrations in the implementation of national security policies—including in areas of targeted killings, torture, indefinite detention, extraordinary rendition, warrantless wiretapping and surveillance—national security secrecy often prevented discovery of those actions. Even when these problematic actions were made public, secrecy that manifests in nondisclosure of counterterrorism measures; executive branch decisions providing legal justification for secrecy, which themselves are secret; broad invocation of the state secrets privilege; doctrinal barriers in courts; and judicial reluctance to delve deeply into national security matters often prevents genuine accountability over abuse. Both administrations insisted they acted legally, but often refused to explain how they interpreted the governing law to justify their actions. They also fought to keep Congress from exercising oversight, to keep courts from questioning the legality of these programs, and to keep the public in the dark. This trend has only continued under the Trump administration, which has largely ignored rule of law principles in stating its national security priorities.

In National Security Secrecy, Sudha Setty takes a critical and comparative look at these problems and demonstrates how government transparency, privacy, and accountability should provide the basis for reform.