Should We Rely on Judges?
Should We Rely on Judges?
Transparency and the Problem of Judicial Deference
This chapter examines whether the judicial review of state secrecy has been deferential, and, if so, whether such deference can be justified. It suggests that the courts have indeed adopted a deferential posture toward the executive's claims about the harm likely to be caused by the disclosure of classified information, even in instances where the classified information appears innocuous. It argues that judges are not qualified to challenge the executive's claims about the harm likely to be caused by the disclosure of secret information. The chapter also considers the issue of using courts to further transparency and asserts that offering reasons as to why a secret ought to remain a secret can itself harm national security.
Keywords: judicial review, state secrecy, courts, executive, classified information disclosure, national security, transparency, judges
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