More than 20 preeminent scholars convened at Duke Law on Sept. 28 for the launch of the Duke-Virginia Foreign Relations Law Roundtable, an annual event co-sponsored by Duke Law and the University of Virginia School of Law designed to explore cutting-edge topics concerning U.S. foreign relations law.
Participants in the inaugural Duke-Virginia roundtable shared works in progress on the theme of “Transparency, Secrecy, and Monitoring in Foreign Relations Law,” in many cases informed by their experience as congressional or executive branch advisors or as officials in national security posts.
“Of course, there are many virtues to transparency in government. But there’s also a lot of consideration now being given to the potential costs of transparency,” said Curtis Bradley, the William Van Alstyne Professor of Law and Professor of Public Policy Studies and the lead organizer of the event that continues a longstanding series Duke Law previously co-hosted with Yale Law School from 2012 to 2018 and with Harvard Law School from 2005 to 2011. “It is broadly understood that leaks can have certain kinds of costs, but transparency can also sometimes chill effective governance. We are looking at the tradeoffs involved with transparency, and whether there are times we ought to limit the amount of information available to monitor the government.”
The executive branch has significant constitutional authority relating to foreign relations, and Congress often delegates substantial additional discretion to the executive branch in this area, said Bradley, co-director for the Center for International and Comparative Law. But as either a supplement or alternative to direct regulation of the executive branch’s foreign relations conduct, Congress frequently imposes transparency requirements. In theory, such transparency is designed both to deter problematic conduct and to allow Congress to monitor and detect potential legal or policy problems. Full transparency is not always possible or desirable and sometimes secrecy is justified, he said. However, claims about the need for secrecy can be abused and there are significant questions about how the other two branches of government monitor executive activity relating to foreign affairs.
The roundtable explored ways to structure review mechanisms and other laws to make Congress more effective and consistent in how it communicates with and relates to the president, regardless of which political party controls the executive and legislative branches, Bradley said.
The roundtable agenda included sessions on negotiating and concluding international agreements; executive branch legal reasoning; national security, accountability, and whistleblowing; cybersecurity, surveillance, and big data; and tradeoffs of transparency and the challenges of oversight and reform.
2019 roundtable participants included:
Curtis Bradley, Duke Law School
Elena Chachko, Harvard Law School
Ashley Deeks, University of Virginia Law School
Mary DeRosa, Georgetown Law Center
Kristen Eichensehr, UCLA Law School
Jean Galbraith, University of Pennsylvania Law School
Monica Hakimi, University of Michigan Law School
Oona Hathaway, Yale Law School
Rebecca Ingber, Boston University Law School
Andrew Keller, U.S. Senate Foreign Relations Committee
Martin Lederman, Georgetown Law Center
Kaeten Mistry, University of East Anglia
Jide Nzelibe, Northwestern Law School
Andrew Olson, U.S. Senate Foreign Relations Committee
David Pozen, Columbia Law School
Dakota Rudesill, Ohio State Law School
Rahul Sagar, New York University Law School
Sudha Setty, Western New England Law School
Ganesh Sitaraman, Vanderbilt Law School
Paul Stephan, University of Virginia Law School
Matthew Waxman, Columbia Law School