Deep Secrecy

David Pozen, Columbia Law School


This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

Attending to the depth of state secrets, the Article shows, can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal. It sheds light on how secrecy is employed and experienced, which types are likely to do the most damage, and where to focus reform efforts. And it gives more rigorous content to criticisms of Bush administration practices. Elaborating these claims, the Article also mines new constitutional territory – providing an original account of the role of state secrecy generally, as well as deep secrecy specifically, in our constitutional order.