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Democratic Secrecy: A Philosophical Study of the Role of Secrecy in Democratic Politics

Periodic Reporting for period 4 - DEMSEC (Democratic Secrecy: A Philosophical Study of the Role of Secrecy in Democratic Politics)

Reporting period: 2020-02-01 to 2021-05-31

The project develops a new theory of the democratic legitimacy of secrecy in governance demonstrating that secrecy in exercising (1) executive and (2) legislative power can be democratically authorized. To complement the theory, the project designs (3) the criteria for political accountability for exercising political secrecy and the criteria for assessing responsibility for unauthorized disclosures of classified information by civil servants and the media. The results of this philosophical study set a new course in democratic theory by demonstrating that democratic governance requires less openness than traditionally assumed. These results have also practical relevance: Understanding when and why secrecy is morally acceptable may change the policy approach to transparency provisions, and provide a better fit between the “public's right to know” and the needs of government. Besides the theoretical objectives, provides (4) an empirical study of the practice of trade-offs between transparency and secrecy in governance in European democracies.
Against the prevailing view that state secrecy is, at best, a justified suspension of democratic governance, the project has demonstrated that, under certain conditions, secrecy in exercising executive power is a legitimate form of democratic governance, not merely a justifiable suspension of it. The main pillar of the new theory is the argument linking executive secrecy to the concept of political authority that democratic governments exercise. This theory democratic secrecy has moved beyond the prevailing defenses of secrecy in terms of necessity and raison d’etat. By linking the justification of secrecy to the concept of political authority, the new theory has also overcome the fragmented character of the existing discourse that defends secrecy in isolated contexts (such as military matters or economic policy) and developed a synthesizing approach instead. The main output of this part of the project is a monograph "Secrecy and Democracy: A Philosophical Inquiry" (Under contract with Routledge).

The theory of democratic secrecy has been employed to analyze the philosophical foundations of the Freedom of Information legislation (FOIA) viz. the “public's right to know” and to provide a normative defense of the exemptions from the FOIA.

With regard to the problem of unauthorized disclosures, the project has clarified the wrongness of whistleblowing (the whistleblowers arrogate the power to decide what is and what is not a legitimate state secret, which properly belongs to elected officials; they also violate promissory obligations and role obligations). The project has rebutted the most common defense of whistleblowing in terms of the individual right to freedom of expression. Instead, it states that whistleblowing is justified if three conditions are met: (1) the information disclosed must concern grave government wrongdoing that is of public interest; (2) alternatives to public disclosure must first have been exhausted; and (3) the harmful consequences of disclosure must be minimized. Finally, whereas the existing discussion on whistleblowing presents blowing the whistle as a right, the project has developed a novel approach arguing that blowing the whistle may be a duty. The main outcome of this part of the project is a monograph "The Ethics of Whistleblowing" (Routledge 2019).

An interdisciplinary and evaluative study of the practice of secrecy in governance in European democracies has been conducted. The output of this part of the project is an edited collection of essays, titled “Secrecy and Transparency in European Democracies: Contested Trade-offs” (Routledge 2020). The volume has three distinctive features. First, it focuses on the political practice of secrecy in modern European democracies and thereby broadens and supplements the existing literature, which has hitherto focused mainly on the US and the UK. Second, it gives central place to the political practice of trade-offs between secrecy and transparency. The choice of topics (refusals of FOIA requests, secrecy in the organizational culture of intelligence services, diplomatic secrecy, secret CIA black sites in Europe, classified material used as evidence in court proceedings) has been made with this focus in mind. Third, the volume is interdisciplinary in character.
Having developed an account of the democratic legitimacy of executive secrecy, the project addresses two related issues.

First, the project examined the issue of democratic oversight of executive secrecy. This study involved, on the one hand, a critical discussion of the existing mechanisms of control and accountability and, on the other hand, it used an empirical case study to analyze the negotiation of secrecy rules in the parliament. The latter part of this study is based on interviews with MPs and an analysis of parliamentary debate. The output of this part of the project are: (a) journal articles; (b) doctoral dissertation titled "Enclosing Executive Secrecy: Arguments and Practices in the German Bundestag" (defended on 29/06/2021, Leiden University); (c) monograph "Secrecy and Democracy: A Philosophical Inquiry" (under contract with Routledge).

Second, the project addressed the use of secrecy in the legislative process arguing that a degree of secrecy in legislative process is justified in that it facilitates the decision-making processes. First, secrecy enables legislators to take the initiative. Second, secrecy facilitates compromise. Third, secrecy may expose legislative “capture” (in the legislative context secret voting may serve to reveal legislators’ true preferences. When paired sequentially with open voting, it may then shed light on the distorting influence of lobbyists, campaign donors, and interest groups). In keeping with the DoA, it is argued that accountability does not require a fully transparent legislative process. Contrary to conventional wisdom, accountability and transparency are not the sorts of goods we can simply maximize. Rather, we always need to tailor them by providing some substantive account of the basis on which the agent (lawmaker) is properly accountable to her principal (citizens). It is argued that legislators are properly assessed on the basis of their formal proposals, statements on the record, and binding votes. So long as these contributions are publicly accessible, secrecy cannot be regarded as rendering legislators unaccountable. The output of this part of the project are (a) journal articles and (b) doctoral dissertation titled "Enclosing Executive Secrecy: Arguments and Practices in the German Bundestag" (defended on 29/06/2021, Leiden University) and (c) monograph "Secrecy and Democracy: A Philosophical Inquiry" (under contract with Routledge).

Regarding the problem of unauthorized disclosures, the project will develop an account of the responsibility of the media for unauthorized disclosures. Philosophical discussions have focused mainly on the political and legal answerability of the leakers, with a special focus on civil servants. The answerability of the press has not yet been addressed in the literature. The project fills that gap. The output of this part of the project are (a) journal articles; (b) blogs and (c) monograph "The Ethics of Whistleblowing" (Routledge 2019).
Dr. Dorota Mokrosinska (PI) as expert commentator on the documentary "Risk"directed by Laura Poitras