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UH Law Center Spring 2020 External Workshop Series: UVA Law School professor identifies new players to reduce abuses of executive branch secrecy

Ashley Deeks of the University of Virginia School of Law delivered a remote presentation to University of Houston Law Center students on Monday. Her primary research and teaching interests are in the areas of international law, national security, intelligence and the laws of war.

Ashley Deeks of the University of Virginia School of Law delivered a remote presentation to University of Houston Law Center students on Monday. Her primary research and teaching interests are in the areas of international law, national security, intelligence and the laws of war.

March 26, 2020 - University of Virginia School of Law professor Ashley Deeks workshopped her forthcoming Virginia Law Review article, Secrecy Surrogates, in which she discusses government secrecy and actors who could supply new methods for checking it. The seminar was conducted via Zoom video conference on Monday.

“It’s important for us as members of the democratic populace to pay close attention - as close attention as we can - to what the government does in secret,” she said.

Government secrecy can hide illegality, conceal unwise policy decisions, make it challenging for the people to identify when the executive produces empirically flawed judgments, and enable the executive to avoid having to publicly defend controversial programs.

“When the executive does any of those four types of things, it conflicts with public law values, with things that we expect our government to do and to exercise,” she said. “Things like competence and legality; we expect to be able to hold our government, as a democracy, accountable, and we expect some level of transparency.”

Deeks proposed that, in addition to the entities and measures already in place to check the executive when it operates in secret, such as Congress and the courts, there are new actors and processes also available to push back against government secrecy.

“There is this new set of actors with whom the executive branch finds itself needing to work to address key national security threats today,” she said. “The three actors I am focused on in the paper are the tech companies, states and localities and then also foreign allies, and I’ve been thinking about these actors as ‘unsung secrecy surrogates.’”

Deeks’s work highlights how different groups are or are not incentivized to seek out government secrets, as well as what incentives the executive has to withhold information from those groups.

“The unsung surrogates have different incentives from Congress and the courts, and the executive, importantly, has different incentives and stronger incentives to share intelligence with these unsung surrogates,” she said.

Deeks also spoke about different national security threats, such as terrorism, cyber attacks, and elections, and how the government must depend on non-traditional entities to help mitigate these new threats.

“The federal government cannot not address these threats by itself, and so it needs help from at least these three major buckets of actors … partly because these actors actually own a lot of the infrastructure that is under attack and partly because they actually sometimes have more expertise than the federal government does.”

“They may have better intelligence on the attacks, they may actually have a better understanding of the systems that are being attacked and they might have better ideas about how to address the problem,” she said.

This would mean the executive would have to coordinate with tech companies, states and localities, and foreign allies to counter threats, thus disclosing intelligence to reach positive outcomes.

“Along with the traditional surrogates, the addition of these unsung surrogates helps create a ‘secrecy synopticon’ where you have the many watching the few—that is, the executive government operating in secrecy,” she said.

Some amount of “healthy tension” between the surrogates and the executive would be required to make this operation function smoothly and ensure a mutually beneficial relationship, and her paper includes some ideas for how we may be able to maintain this tension.

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