National Security Lies

Abstract

What legal consequences, if any, exist (or ought to exist) when the President or other Executive Branch officials mislead, dissemble, or outright lie and then, when exposed, justify the deceit in the name of national security? This is a complicated question to answer, because some lies (such as those by the Carter Administration to deny the existence of a rescue mission on the eve of the ill-fated Operation Eagle Claw) are so naturally understandable, while others (such as the false stories surrounding the capture of Private Jessica Lynch in Iraq and the killing of Sgt. Pat Tillman in Afghanistan) seem to have been issued for less defensible reasons.

This article categorizes a number of notable national security lies in American history, examines the seductive appeal of national security lies for executive branch officials to explain why such lies may seem like better options than saying nothing, explains the harms caused by national security lies, and analyzes the likely reasons that national security lies generally incur no sanctions (criminal or otherwise). Finally, the article proposes a model for regulating national security lies that draws from the statutes governing the related areas of covert actions, classification of information, and invocation of state secrets to block litigation.

Keywords: National Security, False Statements, Classified Information, State Secrets, Covert Actions, Congressional Oversight, Executive Branch Deceit

JEL Classification: K10, K14, K40, K41, K42