How to Regulate State Secrecy?
This chapter examines whether state secrecy is commonly abused in contemporary America. A number of scholars argue that the real and apparent abuses of state secrecy are due not to flaws in the Constitution but rather to a lack of courage and wisdom on the part of representatives and citizens. The chapter challenges this claim and suggests that the Framers viewed state secrecy as an essential element of statecraft, and that they vested the authority to keep secrets in the executive because they saw it as best suited to exercise this power. It explains how the regulatory mechanisms that have been championed in recent decades, such as the judicial enforcement of the Freedom of Information Act, have proven ineffective at exposing wrongdoing. Meanwhile, the regulatory mechanisms that have proven effective at exposing wrongdoing, whistleblowing and leaking, are condemned as unlawful or undemocratic and therefore illegitimate. The chapter also considers oversight and regulation of state secrecy by Congress.
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