Liberty, Secrecy, and the Right of Assessment

Law and Philosophy https://doi.org/10.1007/s10982-024-09504-5  The Author(s) 2024 DANIELE SANTORO , MANOHAR KUMAR LIBERTY, SECRECY, AND THE RIGHT OF ASSESSMENT (Accepted 13 April 2024) ABSTRACT. In this article we argue that governmental practices of secrecy threaten the epistemic dimension of rights. We defend the view that possessing a right entitles its holder to the largest extent of available knowledge of the circumstances that may impede the enjoyment of that right. We call this the ‘epistemic entitlement’ of rights. Such an entitlement holds in ideal conditions once full transparency is assumed. However, under non-ideal conditions secrecy is a fact that should be accounted for. We argue that, under such conditions, interference due to secrecy is legitimate when the circumstances under which it occurs are open to assessment by the right-holder. We call this the ‘right of assessment’. It ensures the ex-post fulfillment of the epistemic entitlement under non-ideal conditions of partial compliance where full transparency is unattainable due to the fact of secrecy. The right of assessment shields against arbitrary interference by imposing an obligation on the government to provide justification for any interference in the sphere of fundamental rights. I. INTRODUCTION A common view among political and legal theorists holds that government secrecy is justified in liberal-democratic societies due to considerations of safety or public interest. Secret services and government security agencies, it is argued, provide indispensable intelligence for national security and the prevention of terrorism, thus protecting democratic institutions from existential threats. Secrecy agencies generally respond to the democratic authority since the gathering and classification of information are subject to independent control under the law, including oversight bodies of elected representatives and Constitutional Courts. In recent years, the general trust in the democratic function of secrecy has been subjected to intense criticism due to whistleblowing D. SANTORO, M. KUMAR disclosures of secret surveillance programs, generating an impassioned dialectic between advocates and critics of emergency politics. According to some authors, although secrecy may impinge on constitutional rights, national security is a paramount good that justifies balancing between security and personal liberties in times of emergency1. As Richard Posner put it, the constitution is not a ‘suicide pact’2. On the opposite front, advocates of democratic transparency argue that the balance model authorizes unrestrained secrecy, that is, secrecy3 eschewing proper judicial and parliamentary oversight. Unrestrained secrecy limits citizens’ right to be informed about decisions and policies enacted in their name and, consequently, they are deprived of their ability to assess security policies. Only the transparency of government acts can fulfill the citizen’s right to information. Democratic theory seems to rely too often on a generic ideal of transparency, neglecting the complications arising from implementing it. The advocates of the balance model are more realistic in this regard. They maintain that there is no principled answer to how much transparency is needed to protect rights and democratic 1 For a defense of this view, see Richard Posner, Not a Suicide Pact: The Constitution in a time of National Emergency (New York: Oxford University Press, 2006); Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts. (New York: Oxford University Press, 2007); Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2010); Rahul Sagar Secrets and Leaks: The Dilemma of State Secrecy (Princeton: Princeton University Press, 2013); Rahul Sagar ‘Who Holds the Balance? A Missing Detail in the Debate over Balancing Security and Liberty’, Polity 41(2) (2009): 166–188. For a criticism of the balance, see Jeremy Waldron, ‘Security and liberty: The image of balance’, Journal of Political Philosophy 11(2) (2003): 191– 210. See also Cass R. Sunstein, ‘Government control of information’, California Law Review 74(3) (1986): 889–892, and Daniel J. Solove, ‘Data mining and the security-liberty debate’, The University of Chicago Law Review 75(1) (2008): 343–362, for a critique of the priority assigned to the security interest. Bruce Ackerman discusses the implication of the liberty-security trade-off within the context of a normative proposal on Bruce Ackerman., ‘The emergency constitution’, Yale Law Journal (113) (2004): 1029–1091. 2 Posner, Not a Suicide Pact (New York: Oxford University Press, 2006), citing a remark originally made by Justice Robert Jackson, later taken up by Justice Arthur Goldberg and Ronald Dworkin. 3 We confine our discussion to national security secrecy, specifically focusing on the management of information concerning intelligence. This form of ‘executive’ secrecy is required during the execution of emergency powers, including the concealment of specific operational details, plans, strategies, or tactics that are crucial to effectively respond to and manage the constitutional emergency. It is distinct from confidential and closed-door deliberations that occur within governments and legislative bodies during discussions on which decrees and other emergency measures to implement. We don’t discuss this form of ‘deliberative’ secrecy in legislative deliberations. These debates can be found in Amy Gutmann and Dennis F. Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996), chapter 3; Simone Chambers, ‘Behind closed doors: publicity, secrecy and the quality of deliberation’, Journal of Political Philosophy, 12 (2004), 389–410; Jon Elster, ‘Deliberation and constitution making’, Deliberative Democracy, ed. Jon Elster (Cambridge: Cambridge University Press, 1988), pp. 97–112; and more recently in Brian Kogelmann, Secrecy Government. The Pathologies of Publicity (Cambridge: Cambridge University Press, 2022). For an overview of the debate on secrecy and transparency, see also Brian Kogelmann, ‘Secrecy and transparency in political philosophy’, Philosophy Compass, 16(4) (2021): 1–10. LIBERTY, SECRECY, AND THE RIGHT OF ASSESSMENT accountability since any amount of information can be dangerous when the circumstances are unpropitious. Since rights have to be balanced against countervailing interests of national security, the individual right to information is also subject to limitation when the circumstances demand it. When the right to information is limited, institutional transparency is lost, at least within the timeframe of national emergencies. The implausibility of this view rests on its normative consequences. Its primary injunction stems from a claim of necessity: democracies should accord high discretionary powers to the executive (who has access to secret information) to deci (...truncated)