June 21, 2017
In a recent conference, a collaboration between University of Agder, University of Oslo and Maastricht University, leading experts from Europe and the US, tackled the question how the democratic requirements for transparency could be accommodated with secrecy in the context of foreign policy. This blog shares some of the insights derived from the conference.
Dynamic Balance Between Secrecy and Transparency
Setting the parameters between transparency and secrecy is not an abstract policy or one-off legal decision. Rather it is a continuous dynamic balance shaped by institutional practice. In foreign policy, this balance has been more titled towards secrecy as international relations traditionally operate under the assumption that confidentiality is necessary for trust building between executive actors. It is also recognised that the realisation of some democratic policies may require secrecy. Dr Dorota Mokrosinska (Leiden University) addressed the conceptual question of whether we can think of ‘democratic secrecy’ and theoretically challenged that democracy has merely a presumption in favour of transparency. Professor Aurélien Colson (ESSEC Business School) provided the historical background of the development of secrecy in foreign policy and mapped the shifts towards transparency. Professor Christina Eckes (University of Amsterdam) focused on the constitutional questions of what is specific about the EU legal order that changes and affects the dynamics between secrecy and transparency and whether through the EU we see a different model of how oversight should be conducted in foreign policy.
Parliamentary Oversight in Foreign Policy
Parliamentary oversight is one of the main challenges in establishing a balance between the needs of transparency and secrecy in foreign policy. The information asymmetry faced by parliamentary committees in charge of overseeing executive actions is often mitigated by establishing closed oversight, i.e. committee members gain access to official secrets under the obligations of confidentiality. Yet, at times parliamentary committees do not receive access at all to official secrets due to technical rules on sharing intelligence. Professor Marieke de Goede (University of Amsterdam) discussed these challenges looking at the case of the Terrorist Finance Tracking Programme Agreement between the EU and the US. How the European Parliament handles and gains access to classified information was discussed by Dr Guri Rosén and Dr Anne Elizabeth Stie (University of Oslo/ University of Agder). The discussions also benefited from perspective derived from practice delivered by Mr Bård Vegar Solhjell, Member of Parliament, Norway (former Minister of the Environment), who shared his experiences as MP in dealing with classified information.
A Debate between Public Access to Information and Leaks
Public access to information is more limited in the context of foreign policy. Generally the exception to public access with the aim to protect sensitive information is stipulated in laws that regulate freedom of information. Instead information more often reaches the public through leaks, i.e. unauthorised disclosure of information. Leaks can be a valuable channel of information especially in cases where there is possible abuse of secrecy, but they can also have a destabilising effect on institutional transparency and it is questionable with what purpose and in whose interest such disclosures are made. The intricacies between public access to information and leaks were discussed by Professor Mark Fenster (Levin College of Law), Dr Vigjilenca Abazi (Maastricht University) and Dr Rahul Sagar (NYU Abu Dhabi Campus).
Transparency’s Ideological Drift?
The keynote lecture was delivered by Professor David Pozen (Columbia Law School) who aimed to trace transparency’s drift in Western democracies from a progressive toward a more libertarian (or neoliberal) valence and offered some preliminary reflections on its causes and consequences. Professor Pozen argued that the most fundamental driver of this ideological drift is the diminishing marginal returns to government transparency.Vigjilenca Abazi