Executive Secrecy and Democratic Politics by Dorothee Riese

Author:Dorothee Riese
Language: eng
Format: epub, pdf
ISBN: 9783031306051
Publisher: Springer Nature Switzerland

Intelligence Secrecy—Between Substantive Contestation and Procedural Enclosure

Intelligence agencies are a traditional bastion of executive power and executive secrecy. Therefore, they constitute an obvious and crucial case for studying the legitimation of secrecy. This chapter considered the legitimacy of executive secrecy from the perspectives of its substantive and procedural legitimation. The empirical analysis has highlighted the interdependencies of the two concepts: substantive legitimation, relying on narratives of necessity and inevitability, is contested. How much secrecy parliamentary actors consider to be necessary depends on expectations about harms and benefits—and these expectations differ. Also, what concrete policy goal justifies secrecy beyond very abstract acceptance of secrecy for the sake of security is controversial. Disagreements were shown to run along the different roles taken by political actors: there are partisan conflicts about the right balance of secrecy and disclosure, but there are also conflicts that are based on institutionally defined roles such as governing majority and opposition or parliament and the executive.

Given its broad contestation, substantive legitimation of executive secrecy is lacking. Since the necessity of secrecy is open to interpretation and decision, it cannot serve as an independent source of legitimation of secrecy. Procedural legitimation under certain circumstances closes this gap. If the necessity and scope of secrecy is decided upon in an open and democratic process (e.g. through legislation), the democratic decision-making procedure lends legitimacy to the content of the decision. In addition, oversight as a second mechanism besides legislation serves to ensure that the secrets kept are justified. Both legislation as an ex ante mechanism of legitimation, and scrutiny as an ex post one, are interconnected. Legislation does not just define legitimate secrecy, but also designs a system of parliamentary oversight. And oversight, in turn, serves to ensure as much as possible that executives comply with the legal regulations governing the use of intelligence secrecy.

In practice, secrecy’s legitimacy is fragile. There is much concern about the way secrets are kept and suspicion that they are not kept for the reasons considered legitimate or legislated upon. The analysis of both interviews and plenary debates has highlighted the fear that the executive could keep secrets for its own sake—a concern which indicates the fragility of secrecy legitimation. The inherent possibility of the executive to keep deep secrets or wrongfully justify their secrecy with references to the welfare of the state or necessity requires procedural legitimation to be ongoing. Instead of assuming that secrecy can be legitimised once and for all, its justification needs continuous debate and updating.

References

Bok, S. (1989). Secrets: On the ethics of concealment and revelation. Vintage.

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