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Schulhofer on Information Control & National Security

By Lawrence Solum

Stephen Schulhofer (New York University - School of Law) has posted Secrecy and Democracy: Who Controls Information in the National Security State? on SSRN. Here is the abstract:

In national security matters, we give the executive branch largely unchecked power to conceal from the public and even from Congress whatever information it chooses to consider sensitive. We thus disconnect part of the essential machinery of democracy. This Article seeks to place the problem of information access at the center of national security debate. It argues that in matters of involving classified information, we have needlessly constrained democratic processes, as a result of misdirected fears and misplaced reverence for executive expertise. Many capabilities necessary for sound secrecy decisions can be found only in Congress or the courts. The Article attempts to give coherence to the increasing but tentative efforts by the other branches to claim a coordinate role, and develops an oversight framework more consonant with our constitutional design ? one that combines robust national security safeguards with maximum feasible transparency and accountability.

Full post as published by Legal Theory Blog on August 24, 2010 (boomark / email).