While transparency has become the constant refrain of democratic politics, executive branch officials consistently seek to insulate their activities from public scrutiny.
A recurrent rationale asserts the necessity of secrecy in governance. One narrative presents secrecy as ensuring the integrity of decision-making processes. Thus, when the UK government refused to disclose Cabinet minutes in which military action in Iraq was deliberated, it claimed that secrecy was necessary to ensure effective Cabinet government. In the Statement of Reasons declining the request for disclosure from the Iraq Inquiry Committee, the Attorney General argued: “Conventions on Cabinet confidentiality are of the greatest pertinence when the issues at hand are of the greatest sensitivity. (…) Ministers must have the confidence to challenge each other in private. (…) Disclosure (…) has the potential to (…) compromise the integrity of this thinking space where it is most needed.”
Likewise, secrecy is an emergency measure employed for the political survival of the state, i.e., national security. For instance, this logic underpinned the Polish government’s refusal to confirm/deny the existence of CIA black sites on its territory. Polish leaders viewed alliance with the USA as a strategic safeguard against Russia; since US–PL intelligence cooperation fell under NATO’s Cosmic Top Secret classification, they deemed abetting the secret extraordinary rendition program a necessary security measure.
Let’s grant that transparency in governance is not an unconditional good, that there are circumstances in which resorting to secrecy may be necessary. This prompts the question of whether appealing to necessity is sufficient to render secrecy a legitimate exercise of democratic authority.
Several issues arise here. One is that secret policies and closed-door decision-making generate a knowledge deficit that undermines mechanisms of democratic accountability: People cannot hold state officials to account if they do not know what these officials are doing and why. A related concern is that government secrecy leaves people out of the collective decision-making process, compromising the democratic idea that citizens should remain co-authors of policies to which they are subject.
Now, if governments claim authority to resort to secrecy in emergencies in ways that violate the principles that normally limit their power, they must be able to appeal to principles that permit such violations. What would such principles be?
Defenders of necessity present ‘political survival’ and ‘effectiveness of government action’ as democratic goods, which, in circumstances of necessity, outweigh the citizens’ rights to self-governance and democratic accountability. This, for example, is the thrust of Gabriel Schoenfeld’s defense of the deep secrecy around the Manhattan Project. Schoenfeld claims that “self-preservation” is “the most fundamental business of democratic governance.” Given that the project was considered necessary for the survival of American democracy, the democratic deficit pertaining to executive secrecy was offset by the positive consequences it allowed to attain.
Yet this necessity-based rationale introduces a problematic trade-off. It pits public security and political efficiency against citizens’ rights to accountability and self-governance—consequentialist versus deontological concerns. Such balancing often leads to deadlock. To overcome this, the argument must adopt an intermediate position of threshold deontology: Deontological constraints apply unless the negative consequences exceed a threshold at which consequentialist considerations prevail. For instance, once the threat to national security reaches a certain intensity, accountability succumbs.
Threshold deontology might supply a moral justification for violating moral and political principles that otherwise underpin political order, thereby legitimating the state’s resort to secrecy. But does it?
One problem is that once we grant that it is permissible to violate moral principles when the necessity threshold is reached, the status of the threshold is eroded. Imagine that a new threat arises which the threshold model did not foresee. Since it is unclear whether a departure from the principle is now permissible, we must reconsider the existing threshold in these new circumstances. We may conclude that the threshold needs lowering to adequately address this threat. Since any subsequent threat may be argued to require overriding the previous threshold, this precipitates the hollowing out of moral principles until they are effectively overridden. Allowing moral principles to be violated on the grounds of necessity makes it difficult to limit such violations.
In political practice, such concerns resonate with worries about the unlimited powers that emergency measures confer on the state. The ease with which government officials exaggerate the need for secrecy turns government classification practices towards overclassification. As per our opening example, arguing that disclosure has a negative impact on the quality of Cabinet deliberations, the government resorted to a veto power in FOIA section 53 allowing the executive to block disclosure in “exceptional circumstances” (MOJ 2012). Commenting on the refusal, the Information Commissioner observed: “If the veto continues to be exercised in response to the majority of orders for the disclosure of Cabinet minutes, it is hard to imagine how the most significant proceedings of the Cabinet will ever be made known before the elapse of 30 years (…) it seems that [such] disclosures (…) will, by definition, always be the ones to attract the veto as an “exceptional case”.”
Thus, the necessity principle, framed in terms of threshold deontology, slips toward the familiar maxim that “necessity knows no law.” This has clear implications for the state’s authority to resort to special measures. Since (a) political authority (unlike arbitrary power) is grounded in moral principles and constrained by them, and (b) necessity-driven departures from fundamental norms, pace threshold deontology, evade codification in terms of moral principles, necessity cannot ground the state’s political authority to violate fundamental moral norms. That is, necessity does not confer political authority on the state to deploy special measures, including secrecy, because necessity escapes the normative codification that the idea of political authority presupposes.
From the legal perspective, the case may seem more promising. There are different forms of emergency legislation that allow for legally suspending the law. One approach that liberal-democratic states adopt is to subject emergency powers to ex ante constitutional provisions: special emergency provisions are added to the constitution for regulating departures from law adopted by the state in situations of necessity. Another approach subjects special powers to ordinary law regulation and ongoing or ex post oversight. Unlike constitutional provisions, which specify the substantive conditions of necessity prior to any particular event, ordinary legislation grants power to the executive when a crisis is expected or has already presented itself. This is done either through the adoption of new legislation that grants the government special powers or through the reinterpretation of existing law.
To the extent that the law claims to regulate and constrain emergency powers, secrecy appears to be a legitimate tool for the exercise of political authority. But the notion of legally suspending the law is as problematic as the idea that moral principles could render the morally impermissible permissible: it resists normative codification and risks hollowing out legal norms until they are effectively nullified. Mark Tushnet illustrates this by asking us to list the emergencies that would justify suspending legality, then to imagine an unforeseen crisis: The government could claim that the emergency itself warrants suspending the existing legal criteria governing emergencies. Thus, to the extent that necessity can be invoked to override existing emergency regulation, he concludes, “What appears to be emergency power limited by the rule of law is actually unlimited emergency power.” Since legal authority is constrained by norms that legitimate it, legal authority that resorts to special measures which resist any legal codification is sliding toward unlimited power and thus is difficult to defend.
Does this mean that the state is never permitted to resort to special measures in the face of necessity? Does this mean, for example, that democratic governments cannot sacrifice transparency and democratic accountability when secrecy is necessary to national security?
One way forward is to argue that whatever permission it enjoys does not amount to justification under moral or legal rules. David Owen’s distinction between justification and vindication helps clarify this issue. Justification involves reasons that can be given independently and in advance of action; vindication applies when such reasons are unavailable, yet the agent, all things considered, has no reason to regret acting despite the moral costs involved. Importantly, Owen notes, vindication does not retrospectively justify acts that violate moral principles. Such acts remain morally unjustified, but their performance is vindicated by the value it has brought about. Vindication captures the form of permissibility associated with “dirty hands” cases: We realize that the action was morally wrong, but are glad that the actors did what they did. Such permissibility arises from necessity itself, not from any moral principle that licenses moral norms violations.
So where does this leave us with regard to state secrecy? Since political authority rests on justificatory reasons, the state’s powers violating moral and legal principles that otherwise constrain political action cannot be justified, hence, authorized. However, they may be vindicated if the political community, all things considered, has no reason to regret them. This would support the idea of viewing emergency measures as external to the state’s legal authority. Endorsing this view would, of course, require determining how vindication of secrecy might be expressed given that special measures cannot be fully contained within the law yet still demand acknowledgment from within the political order itself. Should courts use prosecutorial discretion to grant ex-post exemptions? Should extralegal emergency actions be subjected to public judgment ex post—potentially excusing or even endorsing the illegality—as some advocates of extra-legality propose? Ultimately, these questions force us to confront how far a democratic order can go in accommodating such measures without undermining itself.
Dorota Mokrosinska
Dorota Mokrosinska is Professor of Practical Philosophy at Leiden University, The Netherlands. Her research takes up questions concerning political authority and obligation, privacy, media ethics and secrecy and transparency in democratic politics. Her most recent book is "State Secrecy and Democracy: A Philosophical Inquiry" (Routledge, 2024).
