Originally posted on terrorismlawseminar:
Jack Goldsmith’s Power and Constraint tells the story of how the novel and often controversial powers utilized by post-9/11 Presidents were checked by a diverse set of political and legal constraints. The complex moves and counter-moves by all three branches of the government, coupled with the easy-to-underestimate impact made by other institutions such as the public press, ultimately produced a very powerful but very accountable presidency. To reach this end, on many occasions a balance had to be struck between competing interests, where national security was weighed against some other important concern. In one area, however, the introduction of new players, technology, and incentives seems to place the United States on a path where, going forward, the balancing mechanic may be disregarded and legitimate national security interests may be ignored. This area can be found at the confluence of cyber security, the rampant disrespect of confidentiality rules by government officers, and foreign media organizations who do not have America’s best interests at heart.
The first sentence of the Obama Administration’s January 1, 2009 memorandum for the heads of Executive departments and agencies regarding the Freedom of Information Act (FOIA) states: “A democracy requires accountability, and accountability requires transparency.” Citizens must be able to hold officials accountable for their actions, otherwise there is no hope of remedying defects in their representation. But when the government acts in secret, there is no accountability since the people cannot punish behavior of which they are unaware. To make matters worse, when the government acts in secret it increases the likelihood that it will make mistakes. Although the January 1, 2009 memorandum concerns the FOIA, it is a general principle of good government that “the Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” These are the type of “unnecessary secrets” noted by Gabriel Schoenfeld that were seen in the “top-secret” Pentagon Papers. Accordingly, a balance must be struck between secrecy and accountability, but the government lacks a good system for managing the trade-offs. The task then falls to the press to engage the public and foster a discussion that will induce the people or the other branches of government to action. Jane Mayer, author of The Dark Side, described the balancing test as such, “Secrecy, in the name of national security, has to outweigh the value of that basic democratic function [holding individual government officials accountable, so that the electorate can make informed decisions], in order to win out in any given story. It’s a high threshold to meet” (58).