Secrecy Surrogates

*Professor, University of Virginia Law School. Thanks to George Cohen, Jen Daskal, Kristen Eichensehr, Mike Flowers, John Harrison, Debbie Hellman, Rebecca Ingber, Nate Jones, Aaron Karczmer, Matt Olsen, Daphna Renan, Rich Schragger, Paul Stephan, and participants in the 2019 Duke-Virginia Foreign Relations Roundtable and in workshops at Harvard Law School and the University of Houston Law Center for very helpful conversations and comments.Show More

Debates about how best to check executive branch abuses of secrecy focus on three sets of actors that have access to classified information and that traditionally have served—in one way or another—as our surrogates: congressional committees, federal courts, and leakers or whistleblowers. These actors provide only limited checks on the Executive’s misuse of secrecy, however. Most legal scholarship bemoans their flaws but concludes that the status quo is the best that we can do. This Article challenges this account, arguing that there is a different set of actors—a set of unsung “secrecy surrogates”—that can provide additional checks on the quality and legality of the Executive’s classified operations in the cyber, election, and counter-terrorism settings.

Technology companies, states and localities, and foreign allies have become an integral part of U.S. national security operations and enjoy some critical advantages over our traditional surrogates. These actors possess expertise about—and in some cases control—national security-related targets, making them essential partners for the Executive. Further, these surrogates have incentives to check the Executive in ways that advance the public law values of accuracy, accountability, and legality. Finally, unlike leakers, these unsung secrecy surrogates can challenge the Executive without revealing government secrets. These surrogates can only check government abuses of secrecy as long as the Executive requires their cooperation, but they have begun to supplement our traditional surrogates in important ways.

This Article maps the growing role of these unsung secrecy surrogates, argues that they are well-situated to address some persistent secrecy problems, and proposes ways to preserve and enhance the surrogates’ position in the secrecy ecosystem in the future.

Introduction

Misuse of government secrecy is in the headlines. Consider the revelation that White House officials transferred the transcript of President Trump’s call with Ukraine’s President to a highly classified stand-alone computer system to prevent leaks.¹ 1.Julian E. Barnes, Michael Crowley, Matthew Rosenberg & Mark Mazzetti, White House Classified Computer System Is Used To Hold Transcripts of Sensitive Calls, N.Y. Times (Sept. 29, 2019), https://www.nytimes.com/2019/09/27/us/politics/nsc-ukraine-call.html [https://perma.cc/F9ZC-68Z3]; seeDustin Volz, Andrew Duehren & Natalie Andrews, White House Official Feared Trump Transcript Leak Could Be Politically Damaging, Wall St. J. (Nov. 17, 2019, 5:52 AM), https://www.wsj.com/articles/white-house-official-feared-trump-transcript-leak-could-be-politically-damaging-11573942481 [https://perma.cc/LV53-PL42].Show More For many, this incident reflects a paradigmatic problem with government secrecy: actors in the Executive can employ it as a tool to avoid politically embarrassing or legally problematic revelations.² 2.See, e.g., Ayesha Rascoe & Franco Ordoñez, Former Officials Say White House’s Use of Secret System Is Unusual, ‘Disturbing,’ NPR (Sept. 27, 2019, 5:40 AM), https://www.npr.org/2019/09/27/764759182/former-officials-say-white-houses-use-of-secret-system-is-unusual-disturbing [https://perma.cc/7PBJ-5MF8] (quoting former White House official as stating that “[t]his seems to be nothing more than an abuse of the classification and the information security system to safeguard not the information, but to effect a cover-up” (internal quotation marks omitted)).Show More This episode proved to be a success story. A government whistleblower carefully followed statutory procedures, and the Intelligence Community Inspector General shared the whistleblower’s complaint with Congress, which held impeachment hearings to judge the President’s actions. Yet the case may be just as notable for its uniqueness, given how infrequently the whistleblowing process works as intended.

Indeed, legal scholars and political scientists have long decried the current state of affairs, in which the Executive exercises near total control over secret government information with few external checks. A substantial literature wrestles with how to manage the genuine need for secrecy about many national security operations in a democracy whose government should be accountable to the people. Government secrecy can foster four types of problems. First, the Executive can employ secrecy to conceal unlawful acts, such as spying on political enemies. Second, the Executive can use secrecy to conceal poor or controversial judgments or policies. Third, the Executive can use secrecy to conceal incompetent, empirically wrong, or insufficient intelligence and analysis.³ 3.See Loch K. Johnson, Governing in the Absence of Angels: On the Practice of Intelligence Accountability in the United States, in Who’s Watching the Spies? Establishing Intelligence Service Accountability 57, 61 (Hans Born, Loch K. Johnson & Ian Leigh eds., 2005) (quoting intelligence scholar as stating that the major problem facing U.S. intelligence in 2005 was that the “CIA [had] not been gathering enough quality data”).Show More Each of these three types of missteps is embarrassing to the Executive and creates incentives to conceal the underlying action.⁴ 4.See Frederick A.O. Schwarz Jr., Democracy in the Dark: The Seduction of Government Secrecy 2 (2015) (“[T]oo much is kept secret not to protect America but to keep embarrassing or illegal conduct from Americans.”).Show More Fourth, making decisions in secret insulates the Executive from having to justify and defend those decisions in public.⁵ 5.Robert M. Pallitto & William G. Weaver, Presidential Secrecy and the Law 3 (2007) (noting executive interest in “maintain[ing] presidential prerogative against congressional inquiries and judicial orders”); id. at 6 (“Where a president may do what is desired in secret, there is no reason to withstand the ordeal of a political battle to achieve the same ends.”); H.R. Select Comm. To Investigate Covert Arms Transactions with Iran & S. Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition, 100th Cong., Rep. of the Congressional Committees Investigating the Iran-Contra Affair, Minority Report 450, 515 (Comm. Print 1987) (stating that the President should undertake “democratic persuasion” to develop support for his policies and that he will not succeed “unless the public is exposed to and persuaded by a clear, sustained, and principled debate on the merits”); David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257, 279 (2010) (discussing how secrecy provides “insulation from scrutiny”).Show More All of these possible abuses of secrecy engender public skepticism about the government and make it harder for the public—and U.S. allies—to trust the Executive in cases in which secrecy truly is necessary.⁶ 6.See Pozen, supra note 5, at 280; S. Select Comm. To Study Governmental Operations with Respect to Intel. Activities, Final Report, S. Rep. No. 94-755, at 4 (1976) (“[T]here are many necessary and proper governmental activities that must be conducted in secrecy. . . . [However,] intelligence activities conducted outside the framework of the Constitution and statutes can undermine the treasured values guaranteed in the Bill of Rights. Further, if the intelligence agencies act in ways inimical to declared national purposes, they damage the reputation, power, and influence of the United States abroad.”).Show More

Legal scholarship about government secrecy usually focuses on three sets of actors that check and balance executive branch secrecy to reduce abuse.⁷ 7.See, e.g., Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (2013) (considering role of Congress, the courts, whistleblowers, and leakers in managing government secrecy); Pallitto & Weaver, supra note 5 (considering Congress, the courts, and leaks); Michael P. Colaresi, Democracy Declassified: The Secrecy Dilemma in National Security 181 (2014) (discussing role of legislatures, freedom of information laws, and press freedom laws in checking executive secrecy); Mark Fenster, The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (2017) (discussing the role of the press, freedom of information laws, anti-corruption non-governmental organizations, and leaks); Pozen, supra note 5, at 269, 274 (focusing on deep secret keeping by executive officials, treating Congress and the courts as the primary recipients of shallow secrets, and assuming that very few private actors generally will be aware of government secrets); Johnson, supra note 3, at 58 (noting that the “most consistent and serious manifestation of intelligence oversight has come not from presidential commissions, but from the media and the Congress”); Josh Chafetz, Whose Secrets?, 127 Harv. L. Rev. F. 86, 87 (2013) (emphasizing the role of Congress in the secrecy regime).Show More Two sets of actors lie in the Executive’s co-equal branches of government. In the 1970s, Congress created two intelligence committees—the Senate Select Committee on Intelligence (“SSCI”) and the House Permanent Select Committee on Intelligence (“HPSCI”)—in the wake of the Church and Pike Committees’ reports. The intelligence committees, which conduct much of their work in secret, directly oversee the intelligence community and its activities.⁸ 8.Members of the committees that oversee military and foreign relations issues also have access to classified information relevant to their legislative and oversight tasks.Show More The 1970s reforms also produced the Foreign Intelligence Surveillance Court, in which Article III judges authorize executive surveillance for foreign intelligence purposes. Article III courts also review classified information and activities in cases involving state secrets, Freedom of Information Act litigation, and certain criminal cases.

Although not constitutionally linked to the public in the way that Congress and federal courts are, whistleblowers and leakers constitute a third set of actors who attempt to bring abuses (or alleged abuses) to the attention of actors outside the Executive. In the national security setting, leakers emerge from within the executive branch itself and usually remain anonymous. They reveal classified information to the public, often by sharing it with journalists who report on the programs or intelligence contained in the leak. Whistleblowers, on the other hand, follow a statutory process of revealing abuses to their agency’s inspector general and then potentially to members of Congress.

Some view these three sets of actors as surrogates for the broader public, which does not and often should not have access to government secrets. As the literature makes clear, however, all three groups are imperfect surrogates. Congressional committees lack the robust incentives and sometimes the deep experience necessary to check the Executive’s national security activities. Federal courts often doubt their own competence to evaluate secret government programs and so accord substantial deference to executive claims that certain disclosures will harm national security. Leakers reveal information sporadically and can harm genuine national security equities when they do so. Leaking classified information also generally violates criminal law. And whistleblowing is fraught: those who blow the whistle often are subject to retaliation, even though statutes prohibit such responses.

Notwithstanding the flaws in the capabilities and performance of these three groups, many have concluded that the current state of affairs is the best we can do. This Article challenges that conclusion, arguing that this model overlooks at least three other sets of actors who increasingly can and do play a role in curbing misuses of executive secrecy.⁹ 9.I have argued elsewhere that other actors and mechanisms constrain the Executive in its classified operations, including executive branch lawyers and norms of reason giving. See Ashley Deeks, Checks and Balances from Abroad, 83 U. Chi. L. Rev. 65 (2016) [hereinafter Deeks, Checks and Balances]; Ashley S. Deeks, Secret Reason-Giving, 129 Yale L.J. 612 (2020) [hereinafter Deeks, Reason-Giving]; Ashley S. Deeks, The Substance of Secret Agreements and the Role of Government Lawyers, 111 AJIL Unbound 474 (2018).Show More In recent decades, the national security threat landscape has shifted from one of overt, kinetic state-to-state conflict to a landscape dominated by non-state actors and clandestine, hostile operations by foreign governments using new technologies. In light of these new threats, which manifest themselves in the form of pernicious cyber operations, election interference, and terrorist acts, three groups have assumed critical—though underappreciated—roles in the U.S. national security ecosystem.¹⁰ 10.Additional actors play a role in what this Article terms the “secrecy ecosystem.” These actors include the Privacy and Civil Liberties Oversight Board, the Presidential Intelligence Advisory Board (“PIAB”), and the Defense Advisory Board. See, e.g., Kenneth Michael Absher, Michael C. Desch & Roman Popadiuk, Privileged and Confidential: The Secret History of the President’s Intelligence Advisory Board (2012) (discussing the PIAB); Johnson, supra note 3, at 73 (noting that when Brent Scowcroft was Chair of the PIAB, he produced a “hard-hitting review” of the intelligence organization). For reasons of space, however, this Article does not address the role of these other secrecy surrogates.Show More U.S. technology companies,¹¹ 11.By “technology companies,” I mean large social media, software, and computer technology companies such as Google, Microsoft, and Facebook, as well as companies that provide cybersecurity services, such as FireEye/Mandiant, Crowdstrike, and IronNet.Show More states and localities, and foreign allies all possess the capacities and incentives to check problematic uses of government secrecy. For example, technology companies exchange threat information and operational details of cyber attacks with government officials, comparing intelligence and sometimes litigating to contest government decisions to keep programs secret.¹² 12.Similar interactions conceivably occur with utility companies and private banks because these companies have been targets of thousands of hostile cyber operations. The Intelligence Community’s 2019 Threat Assessment noted, “Russia has the ability to execute cyber attacks in the United States that generate localized, temporary disruptive effects on critical infrastructure—such as disrupting an electrical distribution network for at least a few hours—similar to those demonstrated in Ukraine in 2015 and 2016.” Daniel R. Coats, Dir. of Nat’l Intel., Statement for the Record: Worldwide Threat Assessment of the U.S. Intelli-gence Community 6 (2019), https://www.dni.gov/files/ODNI/documents/2019-ATA-SFR—SSCI.pdf [https://perma.cc/M7DS-WPY4]. Further, the Intelligence Community is authorized to disseminate “classified reports to critical infrastructure entities authorized to receive them.” Off. of the Dir. of Nat’l Intel., Dep’t of Homeland Sec., Dep’t of Def. & Dep’t of Just., Sharing of Cyber Threat Indicators and Defensive Measures by the Federal Government Under the Cybersecurity Information Sharing Act of 2015, at 13 (2016), https://www.us-cert. gov/sites/default/files/ais_files/Federal_Government_Sharing_Guidance_(103).pdf. [https://p erma.cc/HYH7-XUCD]. This Article focuses on technology companies because they are most likely to be sophisticated consumers (and providers) of intelligence on cyber operations. Some utility companies are reportedly insufficiently focused on cybersecurity and thus are poorly positioned—at least right now—to play a significant role in checking a sophisticated actor like the Executive. For a critique of utility company cybersecurity practices, see Joseph Marks & Tonya Riley, The Cybersecurity 202: Activist Wants Court To Name and Shame Electric Utilities for Violating Cybersecurity Rules, Wash. Post (Dec. 3, 2019, 4:35 AM), https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/12/0­3/the-cybersecurity-202-activist-wants-court-to-name-and-shame-electric-utilities-for-viol­ating-cybersecurity-rules/5de550bf88e0fa652bbbdb18/ [https://perma.cc/N43C-Z4ZL]; Catherine Stupp, Utilities Are Prime Targets for Cyberattacks, WSJ Pro Cybersecurity (Aug. 7, 2019, 11:19 AM), https://www.wsj.com/articles/utilities-are-prime-target-for-cyberattacks-11565170204 [https://perma.cc/2S5J-EJU6] (“Utilities often don’t have enough employees with security clearance that lets them quickly get classified information about cyber threats from the federal government.”). Utilities, banks, and other operators of critical infrastructure may play a greater checking function in the future as they gain more experience with these threats. For a report recommending that the government enhance its sharing of classified information with utilities grid operators, see Nat’l Comm’n on Grid Resilience, Grid Resilience: Priorities for the Next Administration 28 (2020), https://gridresilience.org/wp-content/uploads/2020/08/NCGR-Report-2020-Full.pdf [https://perma.cc/5QMV-XUAN].Show More Foreign allies sometimes disagree with the U.S. intelligence community’s substantive intelligence judgments, challenging the United States to produce more or better intelligence.¹³ 13.For example, the Trump Administration has tried for more than a year to persuade allies not to employ Huawei equipment in their 5G networks and has received pushback from a range of foreign governments. Robbie Gramer & Lara Seligman, Can the U.S.-U.K. Special Relationship Weather the Huawei Storm?, Foreign Pol’y (Jan. 30, 2020, 5:10 PM), https://foreignpolicy.com/2020/01/30/huawei-intelligence-united-states-britain-trump-5g-in­frastructure-concerns-digital-espionage-special-relationship-five-eyes/ [https://perma.cc/7Z­48-TKWX].Show More Although there are limited public examples of states and localities challenging secret executive activities directly in the election and cyber arenas, these sub-federal officials have the potential to do so because they possess fine-grained information about the election systems and critical infrastructure that are the targets of hostile cyber operations.¹⁴ 14.For instance, in 2013, Los Angeles created a Cyber Intrusion Command Center, City of Los Angeles, Exec. Directive No. 2 (Oct. 30, 2013), https://www.lamayor.org/sites/g/files/wph446/f/page/file/ED2_with_signature_and_letterhead.pdf?1426620047 [https://perma.cc/6E9C-JC7M] (anticipating collaboration with the FBI and other federal agencies), and in 2017, New York City created its own Cyber Command, City of New York, Exec. Order No. 28 (July 11, 2017), https://www1.nyc.gov/a­ssets/home/downloads/pdf/executive-orders/2017/eo_28.pdf [https://perma.cc/7CNG-HA­MH] (anticipating collaboration with federal and state government agencies and the private sector); see also Brennan Weiss, Inside New York City Cyber Command, Bus. Insider (May 5, 2018, 8:00 AM), https://www.businessinsider.com/nyc-cyber-command-protecting-new-yorkers-2018-4 [https://perma.cc/46VA-MWC7].Show More Further, they historically have challenged certain federal counter-terrorism programs, which suggests that they may start to push back in the election and cyber settings as they gain expertise about the threat landscape.¹⁵ 15.See Matthew C. Waxman, National Security Federalism in the Age of Terror, 64 Stan. L. Rev. 289, 333 (2012).Show More

These three groups have several important advantages over our traditional secrecy surrogates. First, they possess specific expertise about the new threats and new targets that Congress, the courts, and leakers might not. Certain technology companies and many allies are highly specialized in intelligence-gathering and analysis, and so are particularly well-suited to detect problematic executive performance in the secrecy space.¹⁶ 16.A possible analogy is to the role of auditors, who verify the accuracy of the government’s records (here, its intelligence and analysis) and point out deficiencies in its operations. For the use of the concept of substantive audits in the intelligence setting, see Eric Posner, It’s Time to Audit America’s Secrets, Foreign Pol’y (Feb. 2, 2018, 5:13 PM), https://foreignpolicy.com/2018/02/02/its-time-to-audit-all-of-americas-secrets/ [https://per­ma.cc/LK65-W4NA]; Elizabeth Goitein & J. William Leonard, Opinion, America’s Unnecessary Secrets, N.Y. Times (Nov. 7, 2011), https://www.nytimes.com/­2011/11/07/opinion/national-security-and-americas-unnecessary-secrets.html [https://perma.cc/2UAL-GFKL] (arguing that one way to combat government over-classification is to allow agencies’ inspectors general to “audit officials’ classification decisions”).Show More Second, each of the three groups brings to the table irreplaceable access to information and infrastructure that the Executive needs to perform its job.¹⁷ 17.See Michael Wines, State Officials Say They Are Told Too Little About Election Threats, N.Y. Times (Feb. 19, 2018), https://www.nytimes.com/2018/02/19/us/elections-states-hacking.html [https://perma.cc/77LU-KFCV] (describing the relationship between the Department of Homeland Security and local election officials as an “arranged marriage”).Show More For technology companies, it is the ability to observe and defend the front lines of critical infrastructure systems, attribute the sources of cyber attacks, and operate the very systems that are subject to foreign manipulation. For states and localities, it is control over and knowledge about election operations and machinery (and other critical infrastructure at the sub-federal level), as well as ground-level intelligence about terrorist activities inside the United States. For foreign allies, it is intelligence and expertise that the United States may not possess about shared threats. The Executive has persistent incentives to share intelligence with these actors to allow them to take necessary steps to enhance U.S. national security. This, in turn, renders them an audience that the Executive must persuade of the soundness of its intelligence and proposed operations.¹⁸ 18.Deeks, Reason-Giving, supra note 9.Show More Third, unlike leakers, these three groups are positioned to challenge secret government operations without revealing those operations.¹⁹ 19.Those who frame the government secrecy debate as a choice between secrecy and disclosure thus are misframing the issue. See Philip H. Melanson, Secrecy Wars 8, 183 (2001) (describing the “ongoing battle between secret keepers and those seeking access”).Show More

These, then, are our unsung “secrecy surrogates”: actors who are given access to secret information that average U.S. citizens are not and who can improve secret executive operations and help mitigate abuses. By “surrogates,” I do not mean that these groups have a direct constitutional, contractual, or agency relationship with the national populace—they generally do not.²⁰ 20.There is an irony here: in certain areas of classified government operations, these actors, which lack a constitutional relationship to our national polity, may be better positioned to alter the non-public behavior of the Executive than the courts and congressional committees, which are our direct surrogates.Show More Instead, I mean that these groups serve as our surrogates in a more general sense: as actors who take our place or are given a particular role in government operations because we are not able to serve in that role ourselves. In particular, these surrogates are positioned to enhance the Executive’s adherence to public law values by (1) stimulating the Executive to improve the accuracy of its intelligence; (2) diminishing the Executive’s opportunity to undertake illegal actions; and (3) increasing the Executive’s accountability for its classified choices.²¹ 21.See Jody Freeman, Private Parties, Public Functions and the New Administrative Law, 52 Admin. L. Rev. 813, 818–19 (2000) (listing “openness, fairness, participation, consistency, rationality, impartiality, and accessibility of judicial review” as well as accountability and legality as public law values); id. at 819 (“Private actors are not just rent-seekers that exacerbate the traditional democracy problem in administrative law; they are also regulatory resources capable of contributing to the efficacy and legitimacy of administration.”); Michael Taggart, The Province of Administrative Law Determined?, in The Province of Administrative Law 1, 3 (Michael Taggart ed., 1997) (defining public law values to include openness, participation, accountability, honesty, and rationality); Mark Aronson, A Public Lawyer’s Response to Privatisation and Outsourcing, in The Province of Administrative Law 40, 43 (Michael Taggart ed., 1997).Show More It is difficult to obtain empirical, unclassified information about the full range of effects of these secrecy surrogates, and so this Article’s conclusions are necessarily tentative. However, based on available analyses of the ways that technology companies, foreign allies, and states and localities have behaved to date in the surveillance,²² 22.Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 106 (2018).Show More cybersecurity,²³ 23.Kristen E. Eichensehr, Public-Private Cybersecurity, 95 Tex. L. Rev. 467, 471 (2017) [hereinafter Eichensehr, Public-Private Cybersecurity].Show More and counter-terrorism²⁴ 24.Waxman, supra note 15.Show More settings, it is clear that these actors can help ensure that U.S. intelligence operations are attentive to legal, procedural, and accuracy concerns and have begun to play this role.

David Pozen has argued that it is preferable in a democratic system like ours, in which the government must keep certain information secret, for those secrets to be shallow rather than deep. (By deep secrets, he means government secrets that only a small number of similarly situated officials know.)²⁵ 25.Pozen, supra note 5, at 274 (“[A] government secret is deep if a small group of similarly situated officials conceals its existence from the public and from other officials, such that the outsiders’ ignorance precludes them from learning about, checking, or influencing the keepers’ use of the information.”).Show More In his view, which I share, our system should favor shallow secrecy whenever possible, because doing so “will systematically lead to . . . outcomes that are deemed acceptable from a greater variety of perspectives, that have been more thoroughly reasoned and refined through a dialogic vetting process, that are better documented, that take longer to be finalized, and that are more likely to be publicized.”²⁶ 26.Id. at 275.Show More He argues that we can shift a secret from being deep to shallow by expanding the number and types of people who know the secret, even if the underlying information remains classified. Pozen, however, contemplates this as occurring primarily by expanding the number and type of secret keepers within the executive branch itself, as well as within Congress.²⁷ 27.Id. at 329–30, 333.Show More This Article argues that the Executive has, by necessity, begun to expand and diversify the number and type of secret keepers in areas that reach far beyond the executive branch or Congress. In so doing, the government is both decreasing the depth of its secrets and positioning these actors to check some of the persistent problems of government secrecy: the concealment of incompetent execution or illegality and the ability of the Executive to avoid justifying its decisions to outsiders.

This new system of surrogates, like the existing one it supplements, is imperfect. For many of the same reasons that our traditional secrecy surrogates do not act as fully faithful agents for the public, these secrecy surrogates offer only partial fixes to our secrecy challenges, even if they are independently powerful actors.²⁸ 28.Several scholars have considered government secrecy problems through a principal-agent lens. Daniel Epps identifies three mechanisms that could help reduce agency costs in the secrecy setting, one of which is the use of proxies. Daniel Epps, Note, Mechanisms of Secrecy, 121 Harv. L. Rev. 1556, 1558 (2008). Epps explores the use of proxies only briefly, however, and focuses on government actors who have a direct duty to the public (the FISC and the Executive). His note does not consider the operations of other proxies, such as those treated here as surrogates. Sidney Shapiro and Reina Steinzor use agency theory to evaluate how to hold Congress and the Executive accountable to the public in the face “burgeoning secrecy.” Sidney A. Shapiro & Rena I. Steinzor, The People’s Agent: Executive Branch Secrecy and Accountability in an Age of Terrorism, 69 Law & Contemp. Probs. 99, 101 (2006). They focus on who should have the power to declassify information, however, not on how other actors can check secret U.S. military and intelligence activities.Show More They have their own pathologies and policy preferences, have incomplete access to classified information, and could serve as a new source of leaks. These actors will not supplant the existing messiness of today’s interplay among the Executive, Congress, the courts, and leakers. Rather, they will supplement the reach of existing surrogates, expanding what Jack Goldsmith has framed, in the wider national security setting, as a “synopticon”—a distributed network of actors that surveils the Executive.²⁹ 29.Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11, at 205–07 (2012).Show More This Article argues that adding knowledgeable players to the “secrecy synopticon” who can provide increased checks and monitoring without sacrificing much secrecy is a desirable development worth sustaining.

This Article makes three contributions. First, it shows descriptively that there are several unsung actors in the government secrecy ecosystem that help guard against the Executive’s misuse of secrecy, and that any evaluation of government secrecy that ignores these actors is importantly incomplete. It is well-understood that these types of actors play an important checking function in the public parts of government operations.³⁰ 30.See, e.g., Freeman, supra note 21, at 816–17 (describing how private actors participate publicly in governance through the regulatory process).Show More This Article shows that these actors also serve a checking function behind the veil of secrecy. Second, it analyzes the features of these groups that allow them to provide these checks. It draws attention to their role as necessary actors in the conduct of national security today; their on-the-ground expertise; and their ability to challenge the Executive without disclosing classified information. Third, the Article offers a normative defense of this development, identifying the surrogates’ incentives to improve the quality of intelligence, challenge legally questionable executive activities, and demand reasons for secret decisions. Thinking about the existence, role, and possibilities of these unsung secrecy surrogates can sharpen how we approach the challenges of government secrecy; identify where the coincidences of interest lie between these surrogates and the national public; suggest ways to preserve salutary overlaps in interest; and allow us to see where the most pressing gaps in oversight remain.

Part I identifies how the Executive can abuse secrecy, as well as the strengths and weaknesses of our traditional secrecy surrogates. Part II argues that several recent developments in national security threats have positioned technology companies, states and localities, and foreign allies to serve as unsung secrecy surrogates. Part III explores the incentives that these actors have to serve as checks on executive abuses of secrecy and considers how those incentives are aligned with the public law values of legality, accountability, rationality, participation, and, to some extent, transparency. Part IV places these unsung surrogates in the context of a broader “secrecy synopticon.” It addresses challenges to the argument that the unsung surrogates can perform robust checking functions and proposes modest ways to enhance their role in the synopticon.

1. * Professor, University of Virginia Law School. Thanks to George Cohen, Jen Daskal, Kristen Eichensehr, Mike Flowers, John Harrison, Debbie Hellman, Rebecca Ingber, Nate Jones, Aaron Karczmer, Matt Olsen, Daphna Renan, Rich Schragger, Paul Stephan, and participants in the 2019 Duke-Virginia Foreign Relations Roundtable and in workshops at Harvard Law School and the University of Houston Law Center for very helpful conversations and comments. ↑

2. Julian E. Barnes, Michael Crowley, Matthew Rosenberg & Mark Mazzetti, White House Classified Computer System Is Used To Hold Transcripts of Sensitive Calls, N.Y. Times (Sept. 29, 2019), https://www.nytimes.com/2019/09/27/us/politics/nsc-ukraine-call.html [https://perma.cc/F9ZC-68Z3]; see Dustin Volz, Andrew Duehren & Natalie Andrews, White House Official Feared Trump Transcript Leak Could Be Politically Damaging, Wall St. J. (Nov. 17, 2019, 5:52 AM), https://www.wsj.com/articles/white-house-official-feared-trump-transcript-leak-could-be-politically-damaging-11573942481 [https://perma.cc/LV53-PL42]. ↑

3. See, e.g., Ayesha Rascoe & Franco Ordoñez, Former Officials Say White House’s Use of Secret System Is Unusual, ‘Disturbing,’ NPR (Sept. 27, 2019, 5:40 AM), https://www.npr.org/2019/09/27/764759182/former-officials-say-white-houses-use-of-secret-system-is-unusual-disturbing [https://perma.cc/7PBJ-5MF8] (quoting former White House official as stating that “[t]his seems to be nothing more than an abuse of the classification and the information security system to safeguard not the information, but to effect a cover-up” (internal quotation marks omitted)). ↑

4. See Loch K. Johnson, Governing in the Absence of Angels: On the Practice of Intelligence Accountability in the United States, in Who’s Watching the Spies? Establishing Intelligence Service Accountability 57, 61 (Hans Born, Loch K. Johnson & Ian Leigh eds., 2005) (quoting intelligence scholar as stating that the major problem facing U.S. intelligence in 2005 was that the “CIA [had] not been gathering enough quality data”). ↑

5. See Frederick A.O. Schwarz Jr., Democracy in the Dark: The Seduction of Government Secrecy 2 (2015) (“[T]oo much is kept secret not to protect America but to keep embarrassing or illegal conduct from Americans.”). ↑

6. Robert M. Pallitto & William G. Weaver, Presidential Secrecy and the Law 3 (2007) (noting executive interest in “maintain[ing] presidential prerogative against congressional inquiries and judicial orders”); id. at 6 (“Where a president may do what is desired in secret, there is no reason to withstand the ordeal of a political battle to achieve the same ends.”); H.R. Select Comm. To Investigate Covert Arms Transactions with Iran & S. Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition, 100th Cong., Rep. of the Congressional Committees Investigating the Iran-Contra Affair, Minority Report 450, 515 (Comm. Print 1987) (stating that the President should undertake “democratic persuasion” to develop support for his policies and that he will not succeed “unless the public is exposed to and persuaded by a clear, sustained, and principled debate on the merits”); David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257, 279 (2010) (discussing how secrecy provides “insulation from scrutiny”). ↑

7. See Pozen, supra note 5, at 280; S. Select Comm. To Study Governmental Operations with Respect to Intel. Activities, Final Report, S. Rep. No. 94-755, at 4 (1976) (“[T]here are many necessary and proper governmental activities that must be conducted in secrecy. . . . [However,] intelligence activities conducted outside the framework of the Constitution and statutes can undermine the treasured values guaranteed in the Bill of Rights. Further, if the intelligence agencies act in ways inimical to declared national purposes, they damage the reputation, power, and influence of the United States abroad.”). ↑

8. See, e.g., Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (2013) (considering role of Congress, the courts, whistleblowers, and leakers in managing government secrecy); Pallitto & Weaver, supra note 5 (considering Congress, the courts, and leaks); Michael P. Colaresi, Democracy Declassified: The Secrecy Dilemma in National Security 181 (2014) (discussing role of legislatures, freedom of information laws, and press freedom laws in checking executive secrecy); Mark Fenster, The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (2017) (discussing the role of the press, freedom of information laws, anti-corruption non-governmental organizations, and leaks); Pozen, supra note 5, at 269, 274 (focusing on deep secret keeping by executive officials, treating Congress and the courts as the primary recipients of shallow secrets, and assuming that very few private actors generally will be aware of government secrets); Johnson, supra note 3, at 58 (noting that the “most consistent and serious manifestation of intelligence oversight has come not from presidential commissions, but from the media and the Congress”); Josh Chafetz, Whose Secrets?, 127 Harv. L. Rev. F. 86, 87 (2013) (emphasizing the role of Congress in the secrecy regime). ↑

9. Members of the committees that oversee military and foreign relations issues also have access to classified information relevant to their legislative and oversight tasks. ↑

10. I have argued elsewhere that other actors and mechanisms constrain the Executive in its classified operations, including executive branch lawyers and norms of reason giving. See Ashley Deeks, Checks and Balances from Abroad, 83 U. Chi. L. Rev. 65 (2016) [hereinafter Deeks, Checks and Balances]; Ashley S. Deeks, Secret Reason-Giving, 129 Yale L.J. 612 (2020) [hereinafter Deeks, Reason-Giving]; Ashley S. Deeks, The Substance of Secret Agreements and the Role of Government Lawyers, 111 AJIL Unbound 474 (2018). ↑

11. Additional actors play a role in what this Article terms the “secrecy ecosystem.” These actors include the Privacy and Civil Liberties Oversight Board, the Presidential Intelligence Advisory Board (“PIAB”), and the Defense Advisory Board. See, e.g., Kenneth Michael Absher, Michael C. Desch & Roman Popadiuk, Privileged and Confidential: The Secret History of the President’s Intelligence Advisory Board (2012) (discussing the PIAB); Johnson, supra note 3, at 73 (noting that when Brent Scowcroft was Chair of the PIAB, he produced a “hard-hitting review” of the intelligence organization). For reasons of space, however, this Article does not address the role of these other secrecy surrogates. ↑

12. By “technology companies,” I mean large social media, software, and computer technology companies such as Google, Microsoft, and Facebook, as well as companies that provide cybersecurity services, such as FireEye/Mandiant, Crowdstrike, and IronNet. ↑

13. Similar interactions conceivably occur with utility companies and private banks because these companies have been targets of thousands of hostile cyber operations. The Intelligence Community’s 2019 Threat Assessment noted, “Russia has the ability to execute cyber attacks in the United States that generate localized, temporary disruptive effects on critical infrastructure—such as disrupting an electrical distribution network for at least a few hours—similar to those demonstrated in Ukraine in 2015 and 2016.” Daniel R. Coats, Dir. of Nat’l Intel., Statement for the Record: Worldwide Threat Assessment of the U.S. Intelli-
    gence Community 6 (2019), https://www.dni.gov/files/ODNI/documents/2019-ATA-SFR—SSCI.pdf [https://perma.cc/M7DS-WPY4]. Further, the Intelligence Community is authorized to disseminate “classified reports to critical infrastructure entities authorized to receive them.” Off. of the Dir. of Nat’l Intel., Dep’t of Homeland Sec., Dep’t of Def. & Dep’t of Just., Sharing of Cyber Threat Indicators and Defensive Measures by the Federal Government Under the Cybersecurity Information Sharing Act of 2015, at 13 (2016), https://www.us-cert. gov/sites/default/files/ais_files/Federal_Government_Sharing_Guidance_(103).pdf. [https://p erma.cc/HYH7-XUCD]. This Article focuses on technology companies because they are most likely to be sophisticated consumers (and providers) of intelligence on cyber operations. Some utility companies are reportedly insufficiently focused on cybersecurity and thus are poorly positioned—at least right now—to play a significant role in checking a sophisticated actor like the Executive. For a critique of utility company cybersecurity practices, see Joseph Marks & Tonya Riley, The Cybersecurity 202: Activist Wants Court To Name and Shame Electric Utilities for Violating Cybersecurity Rules, Wash. Post (Dec. 3, 2019, 4:35 AM), https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/12/0­3/the-cybersecurity-202-activist-wants-court-to-name-and-shame-electric-utilities-for-viol­ating-cybersecurity-rules/5de550bf88e0fa652bbbdb18/ [https://perma.cc/N43C-Z4ZL]; Catherine Stupp, Utilities Are Prime Targets for Cyberattacks, WSJ Pro Cybersecurity (Aug. 7, 2019, 11:19 AM), https://www.wsj.com/articles/utilities-are-prime-target-for-cyberattacks-11565170204 [https://perma.cc/2S5J-EJU6] (“Utilities often don’t have enough employees with security clearance that lets them quickly get classified information about cyber threats from the federal government.”). Utilities, banks, and other operators of critical infrastructure may play a greater checking function in the future as they gain more experience with these threats. For a report recommending that the government enhance its sharing of classified information with utilities grid operators, see Nat’l Comm’n on Grid Resilience, Grid Resilience: Priorities for the Next Administration 28 (2020), https://gridresilience.org/wp-content/uploads/2020/08/NCGR-Report-2020-Full.pdf [https://perma.cc/5QMV-XUAN]. ↑

14. For example, the Trump Administration has tried for more than a year to persuade allies not to employ Huawei equipment in their 5G networks and has received pushback from a range of foreign governments. Robbie Gramer & Lara Seligman, Can the U.S.-U.K. Special Relationship Weather the Huawei Storm?, Foreign Pol’y (Jan. 30, 2020, 5:10 PM), https://foreignpolicy.com/2020/01/30/huawei-intelligence-united-states-britain-trump-5g-in­frastructure-concerns-digital-espionage-special-relationship-five-eyes/ [https://perma.cc/7Z­48-TKWX]. ↑

15. For instance, in 2013, Los Angeles created a Cyber Intrusion Command
    Center, City of Los Angeles, Exec. Directive No. 2 (Oct. 30, 2013), https://www.lamayor.org/sites/g/files/wph446/f/page/file/ED2_with_signature_and_letterhead.pdf?1426620047 [https://perma.cc/6E9C-JC7M] (anticipating collaboration with the FBI and other federal agencies), and in 2017, New York City created its own Cyber Command, City of New York, Exec. Order No. 28 (July 11, 2017), https://www1.nyc.gov/a­ssets/home/downloads/pdf/executive-orders/2017/eo_28.pdf [https://perma.cc/7CNG-HA­MH] (anticipating collaboration with federal and state government agencies and the private sector); see also Brennan Weiss, Inside New York City Cyber Command, Bus. Insider (May 5, 2018, 8:00 AM), https://www.businessinsider.com/nyc-cyber-command-protecting-new-yorkers-2018-4 [https://perma.cc/46VA-MWC7]. ↑

16. See Matthew C. Waxman, National Security Federalism in the Age of Terror, 64 Stan. L. Rev. 289, 333 (2012). ↑

17.  A possible analogy is to the role of auditors, who verify the accuracy of the
    government’s records (here, its intelligence and analysis) and point out deficiencies
    in its operations. For the use of the concept of substantive audits in the intelligence
    setting, see Eric Posner, It’s Time to Audit America’s Secrets, Foreign Pol’y (Feb. 2, 2018, 5:13 PM), https://foreignpolicy.com/2018/02/02/its-time-to-audit-all-of-americas-secrets/ [https://per­ma.cc/LK65-W4NA]; Elizabeth Goitein & J. William Leonard,
    Opinion, America’s Unnecessary Secrets, N.Y. Times (Nov. 7, 2011), https://www.nytimes.com/­2011/11/07/opinion/national-security-and-americas-unnecessary-secrets.html [https://perma.cc/2UAL-GFKL] (arguing that one way to combat government over-classification is to allow agencies’ inspectors general to “audit officials’ classification decisions”). ↑

18. See Michael Wines, State Officials Say They Are Told Too Little About Election Threats, N.Y. Times (Feb. 19, 2018), https://www.nytimes.com/2018/02/19/us/elections-states-hacking.html [https://perma.cc/77LU-KFCV] (describing the relationship between the Department of Homeland Security and local election officials as an “arranged marriage”). ↑

19. Deeks, Reason-Giving, supra note 9. ↑

20.  Those who frame the government secrecy debate as a choice between secrecy and disclosure thus are misframing the issue. See Philip H. Melanson, Secrecy Wars 8, 183 (2001) (describing the “ongoing battle between secret keepers and those seeking access”). ↑

21. There is an irony here: in certain areas of classified government operations, these actors, which lack a constitutional relationship to our national polity, may be better positioned to alter the non-public behavior of the Executive than the courts and congressional committees, which are our direct surrogates. ↑

22. See Jody Freeman, Private Parties, Public Functions and the New Administrative Law, 52 Admin. L. Rev. 813, 818–19 (2000) (listing “openness, fairness, participation, consistency, rationality, impartiality, and accessibility of judicial review” as well as accountability and legality as public law values); id. at 819 (“Private actors are not just rent-seekers that exacerbate the traditional democracy problem in administrative law; they are also regulatory resources capable of contributing to the efficacy and legitimacy of administration.”); Michael Taggart, The Province of Administrative Law Determined?, in The Province of Administrative Law 1, 3 (Michael Taggart ed., 1997) (defining public law values to include openness, participation, accountability, honesty, and rationality); Mark Aronson, A Public Lawyer’s Response to Privatisation and Outsourcing, in The Province of Administrative Law 40, 43 (Michael Taggart ed., 1997). ↑

23. Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan. L. Rev. 99, 106 (2018). ↑

24. Kristen E. Eichensehr, Public-Private Cybersecurity, 95 Tex. L. Rev. 467, 471 (2017) [hereinafter Eichensehr, Public-Private Cybersecurity]. ↑

25. Waxman, supra note 15. ↑

26. Pozen, supra note 5, at 274 (“[A] government secret is deep if a small group of similarly situated officials conceals its existence from the public and from other officials, such that the outsiders’ ignorance precludes them from learning about, checking, or influencing the keepers’ use of the information.”). ↑

27. Id. at 275. ↑

28. Id. at 329–30, 333. ↑

29. Several scholars have considered government secrecy problems through a principal-agent lens. Daniel Epps identifies three mechanisms that could help reduce agency costs in the secrecy setting, one of which is the use of proxies. Daniel Epps, Note, Mechanisms of Secrecy, 121 Harv. L. Rev. 1556, 1558 (2008). Epps explores the use of proxies only briefly, however, and focuses on government actors who have a direct duty to the public (the FISC and the Executive). His note does not consider the operations of other proxies, such as those treated here as surrogates. Sidney Shapiro and Reina Steinzor use agency theory to evaluate how to hold Congress and the Executive accountable to the public in the face “burgeoning secrecy.” Sidney A. Shapiro & Rena I. Steinzor, The People’s Agent: Executive Branch Secrecy and Accountability in an Age of Terrorism, 69 Law & Contemp. Probs. 99, 101 (2006). They focus on who should have the power to declassify information, however, not on how other actors can check secret U.S. military and intelligence activities. ↑

30. Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11, at 205–07 (2012). ↑

31. See, e.g., Freeman, supra note 21, at 816–17 (describing how private actors participate publicly in governance through the regulatory process). ↑