Whose Secrets?

Abstract

This Response to David Pozen's The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. (Forthcoming 2013), argues for a more robust congressional role in our secrecy regime.

Drawing on Pozen's subtle and persuasive account of the ways that our existing secrecy regime broadly serves executive-branch ends, the Response argues that "secret" is a political category, not a natural one. It is only within a particular political context that facts can be said to require secrecy. By deferring almost entirely to the executive branch's executive-friendly secrecy determinations, we largely cede the construction of that political context to the executive.

This Response proposes that, instead of treating secrets as the particular property of the executive, we treat them as belonging to the collective political community. Of course, for them to be secrets, we cannot all know them, but we can allow a role for other institutions of collective decisionmaking. Members of Congress have on occasion played such a role, and they could do so more vigorously. Drawing on examples ranging from the Pentagon Papers to WikiLeaks, this Response examines the rationales for, and the rules governing, an increased role for Congress.

Keywords: national security, secrecy, Congress, executive, President, leaks, Pentagon Papers, Gravel, Snowden, Manning, WikiLeaks