Professor Aziz Rana urges a broad and populist reconsideration of the idea that the administration and military are best positioned to make decisions about national security issues. This Article calls for a rethinking of national security secrecy as well. The centralization of security decision-making power in the early Cold War era fostered a culture of government secrecy, with Congress and the judiciary enabling the rise of national security secrecy out of fear that they were ill-equipped to make security-related decisions, and public fear of internal and international security threats trumping concerns about legitimacy or democratic accountability. This culture of secrecy has reinforced and legitimated governmental secrecy in current times. The ongoing harms include a longterm distortion to the rule of law, prevention of redress for individual litigants harmed by the national security state, a detriment to perceptions of governmental legitimacy, and a severe reduction in transparency and accountability.
Other democratic nations facing severe security threats have found a more just and humane balance between the legitimate need for secrecy and the democratic demand for information concerning actions taken in the name of our national security, which demonstrates that the current U.S. information-sharing paradigm is not necessarily the default. Such evidence provides a strong basis for reconsidering the current security structures in the United States and re-engaging the public in gaining greater access to information that the government relies upon in making security policy. Professor Rana’s call for a re-thinking of the security roles of government actors and of the public provides an important starting point for discourse around remediating imbalances in information and decision-making power to better balance and strengthen our democracy.
Sudha Setty, The Rise of National Security Secrets, 44 Conn. L. Rev. 1563 (2012).