Yale Law Journal, 129, 2020, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2019-53
78 Pages Posted: 17 Sep 2019 Last revised: 2 Feb 2020
Date Written: September 16, 2019
Reason-giving plays an important role in our system of governance. Agencies provide public reasons when making rules so that individuals affected by the rules can assess them. Judges give public reasons when issuing opinions, which allows the public and superior courts to evaluate the caliber of judges’ decisions. Public reason-giving can improve the quality of decisions, deter abuses of authority, and enhance fidelity to legal standards. In these contexts, reason-giving and the publicity principle go hand in hand.
But what happens when the government cannot publicly reveal the reasons for its decisions? Many classified national security decisions are made entirely inside the executive branch. Does the government still provide reasons for those decisions and, if so, who is the intended audience? Does secret reason-giving have the same beneficial effects as public reason-giving? Can the audience for secret reason-giving serve as a proxy for the public?
This Article tackles these questions. It first shows that the Executive often undertakes secret reason-giving, and does so with a variety of audiences in mind, including the officials executing policy decisions, future administrations, foreign allies, and a notional public. The Article then argues that secret reason-giving confers a number of benefits, which manifest themselves differently than in the public context. Recognizing that secret reason-giving imposes constraints on legal and policy decision-making informs the continuing debate about the breadth of executive power in the national security space. If secret reason-giving offers a modest yet achievable way to impose systemic checks on national security decision-making while improving the decisions’ quality, it is in our collective interest for reason-giving to become a regular part of the Executive’s classified decision-making process.
Keywords: secret, reason-giving, accountability, executive branch, president, checks and balances
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