The first half of the work examines the role of secrecy in contemporary political and legal practicesincluding the question of transparency in democratic processes during the Bush Administration, the principle of public justice in England's response to the war on terror, and the evidentiary law of spousal privilege. The second half of the book explores legal, literary, and filmic representations of secrets in law, focusing on how knowledge about particular cases and crimes is often rendered opaque to those attempting to access and decode the information. Those invested in transparency must ultimately cultivate a capacity to read between the lines, decode the illegible, and acknowledge both the virtues and dangers of the unknowable.
|Publisher:||Stanford University Press|
|Series:||The Amherst Series in Law, Jurisprudence, and Social Thought|
|Product dimensions:||6.20(w) x 9.10(h) x 0.90(d)|
About the Author
Lawrence Douglas is James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College.
Martha Merrill Umphrey is Associate Professor of Law, Jurisprudence, and Social Thought at Amherst College.
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The Secrets of Law
Stanford University PressCopyright © 2012 Board of Trustees of the Leland Stanford Junior University
All right reserved.
Chapter OneTransparency and Opacity in the Law: An Introduction
MARTHA MERRILL UMPHREY AUSTIN SARAT LAWRENCE DOUGLAS
The website of WikiLeaks.org, the international organization that publishes data and diplomatic cables closely guarded by various governments and corporations, has described its project as follows:
WikiLeaks is a multi-jurisdictional public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public. ...
We believe that transparency in government activities leads to reduced corruption, better government and stronger democracies. All governments can benefit from increased scrutiny by the world community, as well as their own people....
The power of principled leaking to embarrass governments, corporations and institutions is amply demonstrated through recent history. The public scrutiny of otherwise unaccountable and secretive institutions forces them to consider the ethical implications of their actions. Which official will chance a secret, corrupt transaction when the public is likely to find out? What repressive plan will be carried out when it is revealed to the citizenry, not just of its own country, but the world? When the risks of embarrassment and discovery increase, the tables are turned against conspiracy, corruption, exploitation and oppression. Open government answers injustice rather than causing it. Open government exposes and undoes corruption. Open governance is the most effective method of promoting good governance ...
What conscience cannot contain, and institutional secrecy unjustly conceals, WikiLeaks can broadcast to the world.
This manifesto contains several themes and lines of argument apposite to a consideration of law and secrets. Most prominent among them is a valorization of transparency in governance. In "datadumping" tens of thousands of secret military documents concerning the Afghanistan war and hundreds of thousands of U.S. embassy cables, WikiLeaks' founder Julian Assange asserted his place in the annals of journalism alongside Daniel Ellsberg (of Pentagon Papers fame) as an heroic defender of democratic values. Those values, WikiLeaks asserts, depend upon clear and honest communication between governing social and political institutions and the wider public, both to protect against corruption and to ensure that the consent of the governed is meaningful and effective. By contrast, WikiLeaks equates "secrecy" with oppression, unaccountable authoritarianism, and (more generally) injustice. The revelation of secret information is, from this point of view, an unarguable good, as it punishes corruption and deters those who might otherwise act for their own good at the public's expense.
Such a position presupposes that one can clearly distinguish justice from injustice on the basis of a moral distinction between the "principled" leaking of secrets and their "unjust" concealment. The "principle" in principled leaking may be difficult to articulate fully, but it seems to resonate on at least two levels of meaning. It may, on the one hand, emerge out of the idea that there will be agreement, in at least some instances, that certain substantive acts or practices are corrupt or unjust (fraud, coercion, illegitimate violence). On the other hand, the justification and justice of leaking may follow more generally from a theory of governance that equates official secrecy with antidemocratic practices, regardless of the content of the secret (whether immoral or not). Either way, one can read in the assertion of principle an implicit acknowledgment that the revelation of secrets requires justification—that "leaking" secrets—particularly if they are damaging to the institutions holding them—might be immoral.
The third theme in WikiLeaks self-description is, perhaps paradoxically, that those individuals airing secrets through WikiLeaks who wish to remain—or who must remain—cloaked in anonymity ought to be accorded the most stringent protections available, even from WikiLeaks itself (through its "cutting-edge cryptographic technologies"):
Our servers are distributed over multiple international jurisdictions and do not keep logs. Hence these logs cannot be seized. Anonymization occurs early in the WikiLeaks network, long before information passes to our web servers. Without specialized global internet traffic analysis, multiple parts of our organization and volunteers must conspire with each other to strip submitters of their anonymity.
Critics might suggest that what is good for the goose ought to be good for the gander: that if WikiLeaks values transparency as a general matter, it can not embrace secrecy at its very core. Even under the more limited claim that WikiLeaks values the revelation of secrets whose substance is immoral, relying on anonymous sources whose integrity is impossible to gauge can fatally compromise the organization's legitimacy. Yet for our purposes the more interesting implication arising from this conundrum is that it suggests that transparency relies on a prior opacity: that sources will not expose corruption without protection, and that secrecy necessarily lies at the heart of WikiLeaks' production of truth. In other words, secrecy and transparency are not opposites, but rather stand in a fraught but inescapable relationship with one another.
These three themes—the importance of transparency to democratic governance, the moral ambiguity of both guarding and revealing secrets, and the opacity that may be a precondition for transparency—highlight the allures as well as the dangers of keeping and exposing secrets. As humans we seem haunted by a desire—not always insatiable, but often compelling—to know and uncover knowledge kept from us, and law is one of the signal terrains upon which clashes over secrets play out. Moreover, if law is, as Marianne Valverde has suggested, "a privileged site in which people either seek the truth themselves or comment on the truth-seeking efforts of others," it also depends upon and incorporates certain kinds of secrecy into its workings even as it acts as a lever to uncover the secrets of others.
The essays in this interdisciplinary volume explore the ways law both traffics in and regulates secrecy and describe its place in both the workings of law and in our imaginings of it. Our contributors pose questions about the ways law overtly and covertly produces zones of secrecy, about the relation between secrecy and justice, and about how we represent and read the opacity of law's interpretive and representational processes. If the denizens of WikiLeaks struck a nerve in releasing such vast amounts of information, it is because they laid bare our deep ambivalence—our longing and our fear—over the revelation of secrets at a highly charged legal and political moment.
What Is a Secret?
Both alluring and forbidding, secrets are set apart from the world of the everyday; and, like other things we hold sacred, are ambiguous in the sense that they consist of an unknown onto which we project both our desires and our fears. As Sissela Bok puts it, "[A]midst the vastness of all that we are conscious of not knowing, or of trying to ascertain, we experience as secret the spaces from which we feel shut out" Secrecy is at once necessary for human flourishing and yet may also threaten it. "Secrecy," Bok writes, "is as indispensable to human beings as fire, and as greatly feared. Both enhance and protect life, yet both can stifle, lay waste, spread out of all control. Both may be used to guard intimacy or to invade it, to nurture or to consume. And each can be turned against itself; barriers of secrecy are set up to guard against secret plots and surreptitious prying, just as fire is used to fight fire"
As several of the chapters below suggest, our ambivalence about intentional secrecy in particular is profound. While secrets are not necessarily "ethically negative," their set-apartness provokes suspicion and a tendency to magnify their significance. As we imagine them, "secrets provide the unobservable weapons of the devious" Sometimes we think of secrecy as a kind of poison or infection whose risks multiply because of its tendency to spread. At the same time, we defend our own capacity for secrecy passionately in arguing that a world without secrets is a world deeply destructive of the human. Imaginative culture provides parable after parable detailing the soul-destroying effects of complete transparency.
Intentional secrecy is often distinguished from the more diffuse concept of privacy, notoriously defined by Samuel Warren and Louis Brandeis in its most general sense as "right to be let alone." Bok argues that the defining trait of secrecy is precisely this effort to conceal. "To keep a secret from someone ...," she writes, "is to block information about it or evidence of it from reaching that person, and to do so intentionally: to prevent him from learning it, and thus from possessing it, making use of it, or revealing it." Secrecy is, in her view, different from privacy, which she defines as "the condition of being protected from unwanted access by others—either physical access, personal information, or attention." Liberal societies are deeply invested in the idea that individuals need secrecy for "protection of what we are, what we plan, what we do, and what we own"—particularly vis-à-vis the intrusions of the state. Edward Shils even more emphatically distinguishes the two concepts. "Privacy," he argues, "is the voluntary withholding of information reinforced by a willing indifference. Secrecy is the compulsory withholding of knowledge, reinforced by the prospect of sanctions for disclosure."
And yet if one defines secrecy not with reference to the intentional acts of individuals but from the point of view of the audience from whom knowledge is concealed, one can coherently link secrecy with opacity—with the obscure, impenetrable, or ineffable rather than the concealed. This broader conceptualization of secrecy raises a set of epistemological issues that complicate an easy embrace of transparency in governance and law—issues arising from, for example, the complexity of the human psyche, or the slippery nature of language and representation itself. As a number of our contributors suggest, words on a page or images in a text alone cannot guarantee access to meaning; often to decipher law's secrets one must read between the lines of a report or search further in the historical record; and even then, one can find no guarantee of clarity or transparency.
Secrecy, Transparency, and Governance
However elusive the ideal of transparency may be, it remains central to the project of accountable governance in liberal democracies. Indeed there is a long tradition in political and legal theory extolling the value of transparency. Christopher Kutz has argued that, as far back as ancient Rome,
as a principle, an ideal, the public nature of law went hand in hand with the nature of the republic itself. Indeed the very idea of a Republic, of res publicae, things pertaining to the public—supports the idea of matters of public concern being regulated by public rules, as opposed to the arbitrario—the raw will of the ruler.... The need to know law is a function of the structure of the state, and its basic purpose in creating coherent social order, in which ruler and subject can locate themselves.
Jeremy Bentham echoes these ideas in utilitarian terms: "Publicity," he argues,
[is] the very soul of justice.... It keeps the judge himself, while trying, under trial. Under the auspices of publicity, the cause in the court of law, and the appeal to the court of public opinion, are going on at the same time.... It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced, by the most impressive means: — into a theatre, where the sports of the imagination give place to the more interesting exhibitions of real life.
For Bentham, publicity is the antidote both to unchecked power and to fantasies of the exercise of power untempered by a connection to the realities of its exercise in the world.
However venerable the pedigree of transparency, Alisdair Roberts argues that in fact democracies achieved a basic level of transparency only in the late nineteenth century. Prior to that, governments operated under a strong presumption of secrecy. Slowly, though, the most advanced democracies began to mandate disclosure, a move toward managing rather than simply asserting the privilege of state secrecy. In the United States, scandals of the 1960s and 1970s associated with the conduct of the Vietnam War spawned legal tools to help citizens break the veil of government secrecy. The best known of these is the Freedom of Information Act, initially enacted in 1966 and subsequently amended, which establishes presumptive access for any person to existing, unpublished federal agency records on any topic. FOIA contains, however, certain exemptions, the most significant of which preserves a zone of secrecy around national security information. Particularly after the 9/11 attack, Roberts argues, "security organizations continued to exist in enclaves where the logic of transparency did not apply."
Nonetheless, Amy Gutmann and Dennis Thompson argue that "the reasons officials and citizens give to justify political actions, and the information necessary to assess those reasons, should be public. This principle of publicity is a fundamental requirement of deliberative democracy" They agree with Bentham that publicity both "motivates public officials to do their duty ... [and] encourages citizens to deliberate about public policy and enables officials to learn about and from public opinion" Moreover, they also endorse Kant's view that a policy is unjust if making it public would defeat its purpose. It loses moral legitimacy if it cannot be disclosed to those who are affected and bound by it, and on whose behalf it is enacted. Building on that foundation, Gutmann and Thompson argue that in a deliberative democracy, there are four central reasons favoring publicity over secrecy: first, only public justifications can secure the consent of citizens, whether it be tacit or explicit; second, making reasons public contributes to the broadening of moral and political perspectives that deliberation ought to encourage; third, making reasons public fulfills the potential for mutual respect that deliberation seeks by clarifying the nature of moral disagreement; and fourth, secrecy undermines the self-correcting character of deliberation.
While Gutmann and Thompson acknowledge that sometimes under narrow circumstances secrecy is necessary, drawing on a distinction Kim Lane Scheppele first proposes, they suggest that certain kinds of secrets particularly damage deliberative democracy. Scheppele contrasts "shallow" secrets—those whose existence is suspected but not fully known—with "deep" secrets—those whose very existence is unknown. While harmful, shallow secrets, Gutmann and Thompson suggest, at least afford citizens the chance to take up the challenge proffered by their keepers, and ultimately to decide whether the secret should be kept (at least ideally). Deep secrets, on the other hand, threaten public trust and democratic governance much more significantly insofar as citizens cannot even begin to make inquiries about information because they do not know it exists. As David Pozen puts it, "Deep secrets carry forward the premodern legacy of arcane imperii, mysteries of state the sovereign could invoke to justify his absolute authority and 'to secure domination over an immature people.'"
In some instances, though—particularly when deep secrets concerning national security, having morphed into shallow secrets, are protected by courts—citizens do not have the capability to investigate and remediate even shallow secrets in the ways Gutmann and Thompson suggest. Take, for example, the recent case of Wilner v. NSA. Attorneys for detainees held at Guantanamo Bay had submitted Freedom of Information Act requests to the National Security Agency and the Department of Justice seeking records showing whether the government had intercepted, under the Terrorist Surveillance Program (TSP), communications with their clients. The TSP, once a deep secret, had been publicly acknowledged in December 2005 by President George W. Bush. When the agencies refused their requests, the attorneys sued.
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Table of Contents
Transparency and Opacity in the Law: An Introduction Martha Merrill Umphrey Austin Sarat Lawrence Douglas 1
Open Secrets and Dirty Hands Alasdair Roberts 25
Secret Trials and Public Justice Lindsay Farmer 46
Spousal Secrets: Same-Sex Couples and the Functional Approach to Spousal Evidentiary Privileges Edward Stein 77
Wilkie Collins's Law Books: Law, Literature, and Factual Precedent Bernadette Meyler 135
Historiographic Secrets of the Labour Contract-The Law and Literature of Lewis Jones 'Cwmardy' and 'We Live' Melanie L. Williams 171
Duly Noted or Off the Record? Sovereignty and the Secrecy of the Law in Cinema Richard Burt 211