Executive Prerogative and Disobedient Disclosure of Government Secrets

Abstract

In this chapter, I look at two distinct and conflicting modes of disobedient action. On the one hand, secretive resort by governments to discretionary extra-legal actions in order to preserve the people and, on the other hand, the disobedient disclosure of such actions by cosmopolitan citizens. Indeed, as cosmopolitan citizens, ‘disobedient disclosers’ have an equal claim to justification in resorting to discretionary extra-legality. They do so by virtue of the non-publicity of government prerogative. Consequently, governments and disclosers make competing and contradictory claims to be justified in going beyond the mandates of existing law. This, however, is not a dilemma can be resolved by appeal to an addition to the minimalist list of urgent human rights in Law of Peoples, such as an urgent human right to government transparency. That, after all, would validate one justifiable claim to decency while contradicting another. Instead, decency requires the protection of diverse and sometimes contradictory disobedient actions. Nevertheless, this does not entail immunity from the legal consequences for disobedience. It points not to a human right to transparency as to leniency for diverse disobedience each with a valid claim to the justifiability of their actions. Here, leniency for government officials and disobedient disclosers is a mandate of reasonableness among decent peoples, responding to the irreducible complexity of politics.