Closing Thoughts

by Eric Posner

The State Secrets Privilege. I know little about this doctrine and defer to Bobby’s superior expertise. I will just make a simple point that will by now be familiar. The state secrets privilege, like the other rules we have discussed, reflects a tradeoff between liberty (or some other value at stake in a particular case) and security. The privilege allows the executive to maintain secrecy where publicity would aggravate a security threat, but by the same token enables the executive to engage in various forms of abuse without detection and serious review by the courts. It is tempting to say, and it is said often, that whatever other powers the executive should have during an emergency, at least its actions should be transparent, so that the public can evaluate them. If it must detain people without charges, for example, at least make it do so in the sunshine. Unfortunately, this response simply denies the premise that in some cases loss of secrecy can have devastating consequences, a premise that no one denies but everyone tries to minimize in arbitrary ways (typically by admitting only that troop movements might appropriately be secret, as though troop movements were a phenomenological category carved into the structure of the universe). The risk of executive abuse is the necessary cost, just as it is when one sets up a government in the first place. In this respect, I believe that our view is no different from Bobby’s. What I would add is only that while the privilege must surely be necessary during normal times, it ought to be broader during emergencies, for all the reasons that we have been discussing: when the threat to security increases, a higher risk of executive abuse needs to be tolerated. Of course, if the threshold is already extremely low during normal times, it might not be necessary to expand it during emergencies (but then the privilege should probably be more limited during normal times); or it might be that the degree of emergency is implicitly built into the threshold.

Alternatives. Julian’s post correctly notes that most legal academics think that the judiciary should play a significant role to restrain the executive during the emergency. But there is a third view, generally associated with Cass Sunstein, and Rick Pildes and Sam Issacharoff. On this view, courts should be deferential as long as Congress has authorized the executive action in question. The kick here is that congressional authorization that would not immunize executive action from judicial challenge during normal times does so in an emergency. I do not agree with their arguments, but I can see how many people would find them appealing. If we could reproduce something like the war cabinet system that has served Britain well, that would indeed be worth considering. But the U.S. system is nothing like the British system, and I do not think Congress or members of Congress or particular committees could operate as a kind of war cabinet. Still, the Sunstein/Pildes/Issacharoff proposals have a very significant merit: they make clear that the problem of emergency powers is just an institutional problem. It involves thinking about decision costs, error costs, and the relative capacities of the different branches of government. We all might have different ideas about how to weigh these factors, and once we discuss these different ideas, it becomes clear that the debate is empirical and (at a very low level) analytic, not ideological. Worries about tyranny, fascism, deontological principles, and the like, could be put in the same dustbin as the Federalist Papers.

Censorship. I do think that censorship raises the same issues as the other types of executive actions that we discuss, and that the tradeoff and deference theses apply with equal force. It is interesting to speculate about what would happen if the U.S. had the homegrown terrorism problem that currently afflicts Britain. Would U.S. authorities try as hard as the UK government to censor firebrand imams? It’s hard to say. I expect they would if the problem was serious enough, and I expect courts would defer. But, given U.S. traditions, the problem would probably have to be more serious than it currently is in Britain.

A general thought. One other thought, which has been provoked indirectly by a few of the posts and some of the comments, but mainly by other reactions I have seen from time to time: many people seem to think that the question of the proper tradeoff between security and liberty during emergencies, and the proper role of different government institutions, can be resolved by parsing doctrine. This is most definitely not our view. Given certain broad institutional constraints, the problem is mainly normative and empirical. The contributors to this debate who pour over opinions, statutes, and the constitutional text are often very impressive lawyers, but they are going about the problem the wrong way, and, inevitably, they end up supplying answers by smuggling in normative and empirical assumptions that they do not acknowledge and defend.

Kevin’s Questions. On the first, the book not being a brief for the Bush administration, the only question is whether the hypothetical second 9/11 attack sheds new light on the relative institutional capacity of the presidency. It might not; or it might show that the presidency is not strong enough; or it might show that the presidency is too strong. Everything would depend on the reasons for the attack’s success, and whether one thinks a more constrained president would have either prevented the attack or done less harm to civil liberties in the course of failing to prevent it. Suppose that during World War II, the German offensive in the Ardennes had succeeded and allied troops were driven off continental Europe. Would it have been proper for Congress and the courts to assert control over the executive on the grounds that FDR was incompetent? It would probably take something even worse than that to precipitate such a constitutional crisis.

On the second question, I can’t think of any off the top of my head, but that is probably just due to my ignorance. But one can think of hypotheticals. An extreme example I suppose would be a full-scale invasion of Iraq, designed to weed out some suspected al Qaede elements and to convert Iraq into a model Muslim democracy, a beacon for the Muslim-Arab world, one that would help eliminate the roots of the extremist ideology that resulted in the first 9/11. Although judges could do nothing about this hypothetical Iraq invasion, it would probably not deserve deference from Congress.

My thanks again to Opinio Juris, and Roger in particular, for organizing this symposium. I am sorry that I have not been able to respond to the many interesting comments.

2 Responses

  1. On SSP, the essence of Reynolds was that the government wanted to coverup incompetence – not any special state secret.

    I have called for the government to release the International Committee of the Red Cross report on the CIA Black Sites discussed in Jane Mayer’s recent New Yorker post. No doubt that might be considered a state secret but what it would reveal is that the government has tortured people notwithstanding all the platitudes spoken to us about not doing that. And with that information we could decide what we would do about the lying. It would seem that would be useful. Similar to the usefulness of the release of the Pentagon papers that showed the deception by the government during Vietnam.

    It would seem that judges shaping this judgemade doctrine would be wise to keep in mind that a limited SSP helps us hold leaders accountable. A narrow SSP might be better for the American people than a broad one that essentially sanctions official lying as occurred in Reynolds and is happening with the CIA Black Sites.

    But, what do I know? I am just an American citizen.



  2. The SSP has demonstrably been used to cover-up embarassing information and to impede justice. It also is unnecessary, in that proper safeguards for the information can be obtained by transferring the case to a judge with an appropriate clearance and allowing in camera review. Sensitive information has been treated this way in certain of the terrorism prosecution cases, and civil cases should be handled similarly.

    Let us put the SSP in the dustbin, and pull the actually useful stuff back out.

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