Who holds the balance? A missing detail in the debate over balancing security and liberty

The question of how best to balance the pursuit of security with the protection of civil liberties has been heavily debated in recent years. This paper challenges the conclusions reached in that debate. It argues that although theorists have identified important subsidiary causes of imbalance, they do not address the structural dilemma posed by state secrecy, which creates an information asymmetry that allows officials to manipulate safeguards meant to secure an appropriate balance. Since this asymmetry cannot be easily resolved, imbalance remains a perennial danger that often can be addressed only retrospectively. Unfortunately, retrospection too can be stymied by the executive's control over state secrets, and it can also be undermined by partisanship, even when the relevant information becomes available. With this in mind, the paper identifies mechanisms to limit the abuse of state secrecy and indicates institutional features that may temper the adverse effects of partisanship.