The difficult question, Berensen argued, is not whether governmental secrecy is a good or a bad thing but rather how much of it is really necessary. “Classification decisions will never be made perfectly to everyone’s satisfaction. There inevitably will be errors,” he said. “The question thus devolves to one of process: who will decide what to withhold, and how? 

Heidi Kitrosser, Associate Professor of Law, University of Minnesota Law School, by contrast, laid out a constitutional viewpoint calling for a more aggressive and ongoing structural oversight of the workings of the executive branch by Congress.

“On the first point, of constitutional design, we see a careful balance between secrecy’s virtues and its risks in the Constitution’s text and structure,” she said. “Specifically, we see a negative correlation in the Constitution between the relative openness of each political branch and the relative control that each branch has over the other. Congress is relatively transparent and dialogue-driven. The executive branch, in contrast, is structurally capable of much secrecy, but it also is largely beholden to legislative directives. Thus, the executive branch can be given much leeway to operate in secret, but remains subject to being overseen or otherwise restrained in its secrecy by the legislature…. The historical evidence thus reflects a balanced constitutional design whereby executive secrecy is expected but remains tethered to political accountability. one could argue that a secret-keeping prerogative is intrinsic in the President's executive and commander-in-chief duties. What it does reflect, however, is a constitutional structure that permits secrecy only under conditions that will ensure some political awareness of and ability to check such secrecy. The very framing of the congressional secrecy provision as an exception to an openness mandate, combined with a logical and historical expectation that a large and deliberative legislative body generally will operate in sunlight suggest a framework wherein final decisions as to political secrecy are trusted only to bodies likely to face internal and external pressures against such secrecy.” 

Kitrosser concluded, “an executive branch that can keep secrets but that can be reigned in by Congress reflects the most logical reconciliation of competing constitutional values. On the one hand, the Constitution clearly values transparency as an operative norm. This is evidenced by myriad factors, including the necessities of self-government, the First Amendment, and Article I’s detailed requirements for a relatively open and dialogic legislative process. On the other hand, the Constitution reflects an understanding that secrecy sometimes is a necessary evil, evidenced both by the congressional secrecy allowance and by the President's structural secrecy capabilities. Permitting executive branch secrecy, but requiring it to operate within policy parameters themselves open and subject to revision, largely reconcile these two values.” 

Though these initial hearings generated no dramatic breakthrough in the ongoing debate between proponents of strong executive power and prerogative in asserting the rights to secrecy and those seeking far more congressional latitude in reigning in that power, they were important in opening up a forum where a less rigidly polarized debate might proceed. 

In some small ways too progress toward a more bipartisan understanding was made. For instance Berenson, though arguing strongly for executive prerogative conceded that in specific areas there have been problems with the Bush administration violating laws in secret, and even suggested Congress might be justified in enacting legislation to require additional reporting by the Office of Legal Counsel , so that the executive branch has to tell Congress not only when it refuses to comply with a statute, but also when it imposes its own interpretations on existing statutes. 

Steven Aftergood, Director, Project on Government Secrecy, Federation of American Scientists and editor of Secrecy News, who also testified at the hearing, wrote afterward, “For all of the differences of opinion, there was also a provisional consensus that the executive branch should be required to report to Congress when it significantly interprets or reinterprets a statutory requirement.” 

As a sign of the tentative progress being forged conservative committee member Sen. Sam Brownback (R-Kan.) joined his colleagueFeingold in calling for further discussions.

While such discussions may seem arcane and less relevant than the high drama of political primary elections, the issues being hashed out in this committee are not only critical theoretically, but will be crucial to forging a more bi-partisan and thus effective approach to counter-terror strategy going forward.