Transparency and Executive Authority
This chapter will examine the extent (if any) to which sovereign power and executive authority may be justifiably exercised through secret laws. Generally speaking, social contract views reject such secrecy—insisting instead that laws must be public. In opposition to this apparent view of the social contract tradition, we have recent developments in the United States. These developments go beyond mere government attempts to classify information or to bar disclosure of intelligence-gathering methods or capabilities. They also include maintaining secrecy in the law through which the government exercises the authority it claims. For example, the Foreign Intelligence Surveillance Court issues classified rulings, creating a body of secret law that determines, by implication, which surveillance activities are consistent, and which inconsistent, with the Fourth Amendment’s protection against unreasonable searches without a particularized warrant based on probable cause. This chapter will argue that the social contract tradition itself may contain resources for defending these sorts of actions. It will explore whether paternalistic principles, whose scope is determined through contractarian reasoning, might be able to account for some government secrecy that extends beyond classifying information and protecting intelligence methods and capabilities to maintaining secrecy in some governing laws themselves. The question would be whether such limited paternalism—limited to cases involving “infirmities” of our reason or will—may be justifiably expanded to cover cases where those infirmities are absent, but where typical citizens may simply be “squeamish” about the judgments that certain executive decisions require.