The Ethics of Secrecy and the Rule of Law Conference

Recent events have put
governmental secrecy in the news and enhanced the scrutiny of classification practices. During the Bush Administration, for example, a series of secret legal memoranda authorized the use of enhanced interrogation techniques against terror
suspects. These formed a key component of the Bush administration’s counterterrorism strategy. With the Obama Administration, clandestine legal memoranda have sought to justify the use of targeted killing, and one particularly controversial memo
authorized the killing of an American citizen, Anwar al-Alawki. The contents of the latter have not been made public, though pressure is mounting for its release. Even the criteria by which a target is placed on the targeted killing list (the
“Joint Prioritized Effects List” (JPEL)) remain confidential.

With the pressures of the ongoing War on Terror, major policies and legal questions of national importance have become less and less open to public view. The increase in secrecy is not without costs, as there appears to be a tradeoff between the
need for effective security and the value of transparency. On the one hand, as Immanuel Kant wrote, “every claim to right must have this capacity for publicity.” John Rawls has echoed this same sentiment in requiring publicity as a condition of
the social contract. On the other hand, effective national security crucially depends on the State’s ability to control the flow of information. This Roundtable will consider whether the expanding use of secrecy in governmental practices is
desirable, and, most crucially, whether it is consistent with rule of law values.
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