Mark Fenster – Varieties of Deference to ‘Extraordinary Needs’: CIA and Secrecy in the Courts

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Event Date: 29 April – 1 May 2011
East Midlands Conference Centre
University of Nottingham
University Park
Nottingham NG7 2RJ

Landscapes of Secrecy: The CIA in History, Fiction and Memory

Professor Mark Fenster – Varieties of Deference to ‘Extraordinary Needs’: CIA and Secrecy in the Courts

The constitutional and statutory universe of American administrative law, which includes the Freedom of Information Act and other laws that both enable and attempt to mitigate government secrecy, in theory applies equally to all federal agencies. The CIA, however, is not like other agencies, either in the way in which the law explicitly and in practice exempts it from general administrative laws or in the way it functions in the American legal imaginary. This paper considers how courts understand the CIA as an extraordinary agency with “extraordinary needs . . . for confidentiality and the protection of its methods, sources, and mission” (Webster v. Doe (1988)). It reviews patterns of judicial deference over time and the language and symbols by which courts have explained and performed that deference, at once reflecting and further entrenching the CIA’s very public role as a secretive agency.

Mark Fenster is Professor of Law at the University of Florida. He is the author of Conspiracy Theories: Secrecy and Power in American Culture (U. Minnesota Press, rev. ed. 2008). He has written extensively on transparency as an ideal and the basis for laws regulating government secrecy, and is working on a book on the topic.

Contact information: Levin College of Law, University of Florida, Box 117625, Gainesville, FL 32611-7625, USA

Email: fenster@law.ufl.edu

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