PUBLISHED:August 26, 2019

Duke-Virginia Foreign Relations Law Roundtable

Transparency, Secrecy, and Monitoring in Foreign Relations Law

Saturday, September 28, 2019
Room 3000 | ALL DAY
Duke Law School

  The executive branch has significant constitutional authority relating to foreign relations, and Congress often delegates substantial additional discretion to the executive branch in this area. As either a supplement or alternative to direct regulation of the executive branch’s foreign relations conduct, Congress frequently imposes transparency requirements. To take one example, instead of directly regulating the general phenomenon of executive agreements, Congress in the Case Act requires transparency about their conclusion.

  In theory, such transparency is designed both to deter problematic conduct and to allow Congress to monitor and detect potential legal or policy problems. In some instances, Congress includes substantive standards for executive branch conduct in addition to transparency requirements, and the element of transparency is designed to help Congress monitor compliance with those standards. Transparency is viewed as especially important in this context in light of both the generally lower level of judicial review and the potentially serious consequences of executive branch misjudgment or misconduct.

  Full transparency is not always possible or desirable, however. In the Case Act, for example, Congress provided for more limited reporting of confidential agreements, recognizing that it can serve U.S. interests for some arrangements to be kept secret. Much of the law governing covert operations also reflects this need for secrecy, while attempting to build in mechanisms for monitoring and review. Similarly, the Freedom of Information Act (FOIA) contains national security exceptions. These tradeoffs are also evident in other contexts. Some foreign relations-related statutes require that the President make certain findings before taking action but do not require that he provide evidence in support of those findings. In litigation, courts recognize a “state secrets” limitation on executive branch obligations to provide relevant information, and various justiciability doctrines also work to limit transparency. Furthermore, in some national security litigation, the information offered by the government is considered sufficiently secret that it is considered only in camera and reported publicly by the court with heavy redactions.

  Claims about the need for secrecy, however, can be abused by the executive branch, which will often have an incentive to err on the side of excessive secrecy. To return to the Case Act example, the executive branch has long reported to Congress the legal basis for each executive agreement it has concluded but has refused to share that information with the public, perhaps because its legal justifications are sometimes thin or unpersuasive. The executive branch often classifies many more documents than is warranted. It also aggressively resists many national security and foreign relations-related FOIA requests and often will provide materials that should be disclosed under FOIA only if and when it is sued. In addition, the executive branch is often unduly slow and resistant in the process of prepublication review of works by former government employees.

  Whether information is fully transparent or reported in secret, there are significant questions about Congress’s and the courts’ ability and incentives to monitor executive branch conduct. In the Case Act regime, for example, Congress receives hundreds of agreements that the executive branch has concluded each year, and it is not clear that Congress has the time or inclination to carefully scrutinize them or their legal basis. There also may be tradeoffs in forcing the executive branch to articulate legal justifications for its actions—for example, this may incentivize the executive branch to overclaim about its authority. The United States is not alone in being confronted with difficult tradeoffs between transparency and secrecy in foreign relations, and valuable insights might be obtained from comparative perspectives on the topic.

  This roundtable will explore the general tradeoffs of transparency and secrecy in foreign relations law, and the ability of Congress and the courts to monitor executive branch conduct relating to foreign affairs.

Roundtable Papers

Roundtable Agenda

Participants

Curtis Bradley, Duke Law School

Elena Chachko, Harvard Law School

Ashley Deeks, University of Virginia Law School

Mary DeRosa, Georgetown Law Center

Kristen Eichensehr, UCLA Law School

Jean Galbraith, University of Pennsylvania Law School

Monica Hakimi, University of Michigan Law School

Oona Hathaway, Yale Law School

Rebecca Ingber, Boston University Law School

Kaeten Mistry, University of East Anglia

Jide Nzelibe, Northwestern Law School

David Pozen, Columbia Law School

Dakota Rudesill, Ohio State Law School

Rahul Sagar, New York University Law School

Sudha Setty, Western New England Law School

Ganesh Sitaraman, Vanderbilt Law School

Paul Stephan, University of Virginia Law School

Matt Waxman, Columbia Law School