Necessary but Illegitimate: On Democracy's Secrets

Abstract

AbstractTransparency has become the constant refrain of democratic politics. However, executive branch officials consistently seek to insulate their activities from public scrutiny. A recurrent rationale presents secrecy as a necessary measure called for in circumstances in which the basic interests of the state are at stake. The purpose of this paper is to normatively assess the appeals to the necessity of executive secrecy in democratic governance. The paper fleshes out two ways in which the necessity argument has been framed. It argues that an appeal to necessity fails to confer political and/or legal authority on the state's resort to secrecy because necessity escapes normative codification both in the moral and legal domain (“necessity knows no law”). Drawing a distinction between legitimacy and vindication, it argues, however, that even though a state resorting to secrecy acts beyond its democratic authority, this action may be vindicated.