CHAPTER 1

The Problem

How to Regulate State Secrecy?

In the introduction we noted that there is broad agreement that statesecrecy is justified so long as it is used to protect national security andnot to conceal wrongdoing. However, there is also broad agreement thatin practice state secrecy has become the "all-purpose means" by whichthe presidency has "sought to dissemble its purposes, bury its mistakes,manipulate its citizens and maximize its power." Assuming this complaintis at least partially correct, it raises the question of why it has proven sodifficult to regulate the employment of state secrecy. Why, in other words,has practice been able to diverge so far from principle?

The leading explanation places the blame on fairly recent developments.The presidency, Arthur Schlesinger argues, is responsible for transformingthe "legitimate system of restriction" established by the Framers"into an extravagant and indefensible system of denial." Because thosewho receive "prestige and protection" from secrecy control the classificationsystem, he writes, concealment has "overridden its legitimate objectives."There is, however, something puzzling about this claim. How canthe Constitution, otherwise revered for establishing checks and balances,have allowed the president a free hand when it comes to state secrecy?The culprits, according to Schlesinger, have been war and conflict, whichhave prompted deference from lawmakers and judges, and "unquestioning"loyalty from citizens, thereby ensuring that "the only control over thesecrecy system" has come to be "exercised by the executive branch itself."

But this explanation only deepens the mystery. Did the Framers notforesee that war and conflict might open the door to extensive governmentsecrecy? A number of scholars believe not. The Framers, they maintain,intended to construct a political system where secrecy would be a rare andexception rather than an enduring presence. This claim wasfirst pressed by an earlier generation of scholars, including Schlesinger,Henry Steele Commager, Raoul Berger, and Daniel Hoffman, who tookthe view that the Framers supported the "principle of disclosure." Andit has since been reiterated by, among others, Geoffrey Stone, Robert Pallittoand William Weaver, David Pozen, and Heidi Kitrosser, who havedeclared that the Constitution is premised on a "philosophy of openness."

The claim that the Framers expected state secrecy to be the exceptionrather than the norm in American government has rightly beenchallenged in recent years. Abraham Sofaer, Mark Rozell, Stephen Knott,and Gabriel Schoenfeld, among others, have marshaled evidence showingthat early administrations, which were led by prominent Framers, readilyutilized covert action and withheld information from citizens and lawmakers.Even so, because these scholars have not examined in detail theexamples and ideas that influenced the Framers, they have somewhat understatedthe case that can be made against the prevailing view. I cannotaddress this lacuna at length here, but even a brief overview of the broaderintellectual and historical context will show that the Framers cannot beunderstood to have supported "the principle of disclosure" or "a philosophyof openness."

There are, then, at least three reasons to be skeptical about the viewthat the Framers were leery of state secrecy. In the first place, we shouldbear in mind that the Framers undoubtedly knew that prior republics hadreadily employed secrecy. Though neither Athens nor Rome developed aninfrastructure or corps dedicated to the collection and protection of secretintelligence, the Framers would have learned from the classical sourcesthey knew well that the Athenians and Romans had utilized an array ofsources and methods to obtain intelligence on an ad hoc basis, and thattheir leaders had made frequent, if often private, efforts to obtain secretintelligence when this was necessary and feasible.

The Framers' consideration of the history of modern republics wouldonly have sharpened this understanding. The experience of the EnglishCommonwealth would have been especially telling in this regard. In thecentury preceding the English Civil War, the business of intelligence in Englandhad been transformed by the emergence of a new breed of officialswho came to occupy the office of principal secretary. The men who filledthis office—Thomas Cromwell, William Cecil, and Francis Walsingham—wererenowned for their "peculiar knowledge" of "dangers both abroadand at home," which they obtained by building an effective, far-reaching,and secretive "intelligence system" consisting of clerks, translators, archivists,code-breakers, forgers, and messengers, through whom the principalsecretaries controlled a "shifting legion of freelancers" and dozens offoreign "correspondents." Did a sense of republican propriety lead the officersof the English Commonwealth to spurn the methods and practicesutilized by the principal secretaries? Far from it. These officials readilyfollowed their Tudor and Stuart forerunners in cultivating a far-flung networkof spies and correspondents. Indeed, they went further, secretly coordinatingthe publication of propaganda and institutionalizing the covertinterception of mail. The same holds true after the Glorious Revolution.Over the course of the eighteenth century, the executive in England (increasinglythe prime minister rather than the monarch) immersed itselfever deeper in the business of intelligence, as can be discerned from thesteady growth of public funding on this front. Under James I and CharlesI, the funds made available to the secretaries of state under this head hadbeen seven hundred pounds each; by 1786, the budget for intelligence wastwenty-five thousand pounds. These resources were used to cement...