The People\u27s Agent: Executive Branch Secrecy and Accountability in an Age of Terrorism

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive Branch officials accountable to the public. This paper extends this literature by using agency theory to evaluate the impact of burgeoning secrecy on the likelihood that Executive Branch officials will engage in faithful and forceful implementation of statutory mandates, particularly in the arenas of protecting public health, safety, and natural resources. The paper first explains why agency theory is useful in analyzing how the government should resolve conflicts between transparency and other important public policy objectives. Our use of agency theory then produces the following insight. While wise policymaking requires a balancing of competing interests in secrecy and openness, such decisions must be made by dispassionate and authoritative officials who have no personal stake in whether the information is ultimately disclosed. We therefore make three recommendations. Congress should reverse judicial interpretations that have weakened the Freedom of Information Act (FOIA) and the Federal Advisory Committee Act (FACA) by restoring the open government requirements that Congress intended to impose when it wrote those laws. Congress should also limit the secrecy protections of the Critical Infrastructure Act (CIIA) to situations where there is a reasonable likelihood that transparency presents a tangible risk to the nation’s security