The essay considers the limits to executive branch capacity to provide reliable legal analysis in times of emergency, including covert military operations. It highlights the special risks government faces when the circle of presidential advisers narrows because of highly classified operations and there is less opportunity for senior advisors, including attorneys, to review pending initiatives. Executive unilateralism legitimates secrecy, and secrecy promotes effective decision making only in exceptional circumstances: subjecting an administration’s performance to public scrutiny will improve both the quality of the performance and public confidence in the executive branch.
Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis
