[Infowarrior] - SLR Paper: Deep Secrecy

[Richard Forno]

  Deep Secrecy

David Pozen

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1501803


Stanford Law Review, Forthcoming

Abstract:

This Article offers a new way of thinking and talking about government  
secrecy. In the vast literature on the topic, little attention has  
been paid to the structure of government secrets, as distinct from  
their substance or function. Yet these secrets differ systematically  
depending on how many people know of their existence, what sorts of  
people know, how much they know, and how soon they know. When a small  
group of similarly situated officials conceals from outsiders the fact  
that it is concealing something, the result is a deep secret. When  
members of the general public understand they are being denied  
particular items of information, the result is a shallow secret. Every  
act of state secrecy can be located on a continuum ranging between  
these two poles.

Attending to the depth of state secrets, the Article shows, can make a  
variety of conceptual and practical contributions to the debate on  
their usage. The deep/shallow distinction provides a vocabulary and an  
analytic framework with which to describe, assess, and compare  
secrets, without having to judge what they conceal. It sheds light on  
how secrecy is employed and experienced, which types are likely to do  
the most damage, and where to focus reform efforts. And it gives more  
rigorous content to criticisms of Bush administration practices.  
Elaborating these claims, the Article also mines new constitutional  
territory - providing an original account of the role of state secrecy  
generally, as well as deep secrecy specifically, in our constitutional  
order.

Keywords: State Secrets, Executive Power, Constitutional Theory,  
Separation of Powers, Democratic Deliberation, Bureaucratic Culture,  
National Security, Mosaic Theory, Black Holes, Church Committee, Bush  
Administration, Rumsfeld, CIA, FISA, FOIA