Should we Defer to Secret Evidence?

At the Volokh Conspiracy,  Stuart Benjamin raises an important question, asking:

whether we can articulate any useful metrics for when we should defer to self-serving statements by those with access to more information, and when we should not. In the two instances above, the doubters were vindicated. There are other examples in this vein. LBJ had access to greater information about the Gulf of Tonkin incident than did the doubters, but the latter were right, as the Pentagon and LBJ misrepresented what happened…

But there are counter-examples. Many people believed that Julius Rosenberg was innocent, but it is now clear the government really did have the goods on him, and that he was guilty. Same for Alger Hiss. Indeed, the airstrikes that President Clinton ordered at the height of the Lewinsky imbroglio – which were widely criticized as trumped up attempts at diverting attention, with little deference to the information asymmetry favoring the President – look quite different after September 11, 2001.

Two strategies for dealing with such asymmetries come to mind. One is an ex ante strategy, working to place unusually trustworthy individuals and groups in such positions (life-tenured judges, bipartisan committees, etc) or in positions where they can provide credible signals about justification (as Auditor-General, for instance). The other relies on the shadow of ex post punishment, which could be increased in inverse proportion to the probability of eventual detection.

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  • anon

    neither of these would meet the criteria of “useful metrics” for obvious reasons.

  • Carl Shulman


    These are not necessarily strategies that an individual can implement, but their existence nonetheless creates a useful metric. A car buyer in the market for lemons cannot compel dealers to provide warranties, but willingness or failure to provide them nevertheless provides informative signals.

    The fact that an outside director on a corporate board has not resigned is informative, even if the non-public information she is privy to is not disclosed. Phone taps cleared with a FISA judge are at least somewhat less troubling than a warrantless search. Reliance on secret data to support a case for war is more credible when the data is vouched for by Congresspeople not of the President’s party than when the data are only shared with handpicked supporters.

  • This is not a metric either, but would some sort of delayed sunshine work? Perhaps a default of 90 days of delay on releasing information. The bit that could be included in any warrantless search or FISA wire taping, or Gitmo detentions is a statutory time limit. This is perhaps the mechanism for the ex post punishment you suggest. But these state secrets are important for some time, the time needs to be specified when information is buried. One week? One generation (20 years)? Until all involved are deceased? What are the limits of secrets now?

  • Unlike the ex ante examples in the post, there’s no reason to assume “Congresspeople not of the President’s party” are unusually trustworthy. They may have some opposing interests, which would in general increase credibility upon agreement, but not so much in the case of foreign policy.

    AFAICT the shadow of ex post punishment for warmongers (excepting the utterly defeated) almost does not exist. Extranational prosecution may help, see

    Outside war, there’s a suggestion the concept of malpractice be expanded to more planning/policy professions — IIRC — I read and posted about that in

  • Carl Shulman


    Many WWII secrets were classified for 50 year periods, while the truth behind Alger Hiss, etc, only came out at the end of the Cold War. Where a sustained situation (concealing from the USSR that its codes had been broken) requires a long classification period, it can be subdivided into smaller intervals, renewable after each in a FISA-court-style proceeding. However, time limits cannot be so generous that the actor is no longer susceptible to meaningful reward and punishment. Term-limits and the resultant last-period problem necessitate that effective sunshine be administed more rapidly.


    Yes, it’s the mixed group as a whole which is more trustworthy, insofar as it provides whistleblowing incentives, not one set of partisans. If the opposition is uninterested in whistleblowing on foreign policy (because it agrees on policy, or fears appearing unpatriotic, perhaps) then it will add little value.

    Prosecution of war criminals and policy malpractice both suffer from the vagaries of prosecutorial discretion. Deferred compensation to an actor based on the results of future disclosure, or an enforceable promise by the actor to pay in the event that he is revealed to have misled, could bypass this by creating a private right of action. On the other hand, the danger of financial incentives is that lying may provide the opportunity to acquire sufficient wealth or professional success that cash costs are a pittance.