Deliberative Constitutionalism in the National Security Setting

Abstract

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community. Such requirements would seem to be especially important in the national security setting, where decisions can have profound life-and-death consequences. Yet this is the setting in which transparency often is least feasible on the part of the Executive branch. Officials may be constrained for good reasons from fully explaining the bases for their decisions. While such reason-giving is especially important to the perceived legitimacy of a decision, anticipating the need to provide it also can enhance deliberative rigor. Limited transparency thus creates the risk both that crucial decisions may not be regarded as legitimate, and that the deliberative process will not be as robust as it should be. In this chapter, we argue that ensuring robust internal deliberative processes in the national security setting can compensate at least to some degree for this limitation. Appreciating the demands of deliberative democracy theory can help inform this process by illuminating how various procedural mechanisms may promote the goals that transparency purports to serve. We focus on the Lawyers Group, which includes senior national security lawyers from across the government, as an example of an arrangement that can help further the ends of deliberative democracy by providing a vehicle for deliberation that meets many, even if not all, of the requirements of that theory. Coordinated by the legal advisor for the National Security Council, this group discusses national security issues that will be presented to the President. We regard our analysis as contributing in two ways to deliberative democratic theory. First, it focuses on the possibility of satisfying the requirement of this theory in a setting in which decision-making often falls short of the demands of full transparency. Second, it suggests how legal analysis may play a distinctive role in the deliberative process. There are limits to what the Lawyers Group can accomplish. We believe, however, that it should be assessed in terms of its contribution to the larger national security deliberative system of which it is a part. From this perspective, the Group’s compliance with several prescriptions of deliberative theory helps it strengthen, even if it does not guarantee, the rigor and persuasiveness of the justifications that the President is able to provide for national security decisions