The Problem

How to Regulate State Secrecy?

In the introduction we noted that there is broad agreement that state secrecy is justified so long as it is used to protect national security and not to conceal wrongdoing. However, there is also broad agreement that in practice state secrecy has become the "all-purpose means" by which the presidency has "sought to dissemble its purposes, bury its mistakes, manipulate its citizens and maximize its power." Assuming this complaint is at least partially correct, it raises the question of why it has proven so difficult 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 transforming the "legitimate system of restriction" established by the Framers "into an extravagant and indefensible system of denial." Because those who receive "prestige and protection" from secrecy control the classification system, he writes, concealment has "overridden its legitimate objectives." There is, however, something puzzling about this claim. How can the 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, which have prompted deference from lawmakers and judges, and "unquestioning" loyalty from citizens, thereby ensuring that "the only control over the secrecy system" has come to be "exercised by the executive branch itself."

But this explanation only deepens the mystery. Did the Framers not foresee that war and conflict might open the door to extensive government secrecy? A number of scholars believe not. The Framers, they maintain, intended to construct a political system where secrecy would be a rare and short-lived exception rather than an enduring presence. This claim was first pressed by an earlier generation of scholars, including Schlesinger, Henry Steele Commager, Raoul Berger, and Daniel Hoffman, who took the view that the Framers supported the "principle of disclosure." And it has since been reiterated by, among others, Geoffrey Stone, Robert Pallitto and William Weaver, David Pozen, and Heidi Kitrosser, who have declared that the Constitution is premised on a "philosophy of openness."

The claim that the Framers expected state secrecy to be the exception rather than the norm in American government has rightly been challenged in recent years. Abraham Sofaer, Mark Rozell, Stephen Knott, and Gabriel Schoenfeld, among others, have marshaled evidence showing that early administrations, which were led by prominent Framers, readily utilized covert action and withheld information from citizens and lawmakers. Even so, because these scholars have not examined in detail the examples and ideas that influenced the Framers, they have somewhat understated the case that can be made against the prevailing view. I cannot address this lacuna at length here, but even a brief overview of the broader intellectual and historical context will show that the Framers cannot be understood to have supported "the principle of disclosure" or "a philosophy of openness."

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

The Framers' consideration of the history of modern republics would only have sharpened this understanding. The experience of the English Commonwealth would have been especially telling in this regard. In the century preceding the English Civil War, the business of intelligence in England had been transformed by the emergence of a new breed of officials who came to occupy the office of principal secretary. The men who filled this office — Thomas Cromwell, William Cecil, and Francis Walsingham — were renowned for their "peculiar knowledge" of "dangers both abroad and 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 principal secretaries controlled a "shifting legion of freelancers" and dozens of foreign "correspondents." Did a sense of republican propriety lead the officers of the English Commonwealth to spurn the methods and practices utilized by the principal secretaries? Far from it. These officials readily followed their Tudor and Stuart forerunners in cultivating a far-flung network of spies and correspondents. Indeed, they went further, secretly coordinating the publication of propaganda and institutionalizing the covert interception of mail. The same holds true after the Glorious Revolution. Over the course of the eighteenth century, the executive in England (increasingly the prime minister rather than the monarch) immersed itself ever deeper in the business of intelligence, as can be discerned from the steady growth of public funding on this front. Under James I and Charles I, the funds made available to the secretaries of state under this head had been seven hundred pounds each; by 1786, the budget for intelligence was twenty-five thousand pounds. These resources were used to cement the precedents established in the sixteenth and seventeenth centuries — as the Framers experienced firsthand during the Revolutionary War.

A second reason to be skeptical about the claim that the Framers were wary of state secrecy is that many of the republican theorists they were familiar with endorsed it as valuable. Recall that the first major step toward the institutionalization of secret intelligence had actually been taken in the republican city-states of Renaissance Italy. Having discerned the value of information in navigating the treacherous world they inhabited, these city-states were among the first to post ambassadors abroad. As the primary mission of an ambassador was to communicate back to the chancery whatever intelligence he could...