Secrecy and Democratic Decisions

Quinnipiac Law Review, Vol. 27, p. 1, 2009

53 Pages Posted: 12 Mar 2009 Last revised: 11 Nov 2009

Mark Chinen

Seattle University School of Law

Date Written: November 15, 2008

Abstract

Secrecy to protect intelligence sources and methods appears often in the nation's discourse about controversial national security matters. Often it is asked whether such secrecy is consistent with the nation's democratic principles and processes. I argue such principles and processes provide a framework through which we try to answer questions about secrecy and indeed legitimate them, but are often too broad to provide definitive guidance in specific cases. At the same time, the sources and methods argument itself is overbroad because of the nature of the sources and methods themselves; the tentative nature of intelligence assessments derived from those sources and methods; the often modest role intelligence plays in policymaking; the sometimes flawed logic of the sources and methods argument; and the costs incurred by information asymmetries. This has several implications for the use of secrecy in decisions of national moment; the protection of civil liberties and the state secrets privilege; and oversight of the intelligence community and others who make the sources and methods argument.

Keywords: democracy, national security, intelligence, civil liberties

Suggested Citation

Chinen, Mark, Secrecy and Democratic Decisions (November 15, 2008). Quinnipiac Law Review, Vol. 27, p. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1302067

Mark Chinen (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States
206-398-4040 (Phone)

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