The Yale Law Journal

January 2020

Secret Reason-Giving

National SecurityExecutive Power

abstract. Reason-giving plays an important role in our system of governance. Agencies provide public reasons when making rules so that individuals affected by the rules can assess them. Judges give public reasons when issuing opinions, which allows the public and higher courts to evaluate the caliber of the judges’ decisions. Public reason-giving can improve the quality of decisions, deter abuses of authority, and enhance fidelity to legal standards. In these contexts, reason-giving and the publicity principle go hand in hand.

But what happens when the government cannot publicly reveal the reasons for its decisions? Many classified national security decisions are made entirely inside the executive branch. Does the government still provide reasons for those decisions, and, if so, who is the intended audience? Does secret reason-giving have the same beneficial effects as public reason-giving? Can the audience for secret reason-giving serve as a proxy for the public?

This Article tackles these questions. It first shows that the Executive often undertakes secret reason-giving and does so with a variety of audiences in mind, including the officials executing policy decisions, future administrations, foreign allies, and a notional public. The Article then argues that secret reason-giving confers a number of benefits, which manifest themselves in a different way than in the public context. Recognizing that secret reason-giving imposes constraints on legal and policy decision-making informs the continuing debate about the breadth of executive power in the national security space. If secret reason-giving offers a modest yet achievable way to impose systemic checks on national security decision-making while improving the quality of decisions, it is in our collective interest for reason-giving to become a regular part of the Executive’s classified decision-making process.

author. E. James Kelly, Jr.—Class of 1965 Research Professor of Law, University of Virginia Law School. Many thanks to Mathilde Cohen, Mike Flowers, Chimène Keitner, Robert Litt, Mitt Regan, Alan Rozenshtein, Daphna Renan, Rich Schragger, Paul Stephan, Jed Stiglitz, and participants in the 2018 Yale-Duke Foreign Relations Law Roundtable and a Vanderbilt Law School Faculty Workshop for very helpful comments. Rachel Brown and the other editors of the Yale Law Journal provided excellent substantive suggestions and editorial assistance. Thanks also to Ben Doherty and Kristin Glover of the University of Virginia Law Library for reference assistance and to Scott Harman-Heath for research assistance.