National Security in the Courts: The Need for Secrecy vs. the Requirement of Transparency

National Security in the Courts: The Need for Secrecy vs. the Requirement of Transparency

National Security in the Courts: The Need for Secrecy vs. the Requirement of Transparency

National Security in the Courts: The Need for Secrecy vs. the Requirement of Transparency

Synopsis

Silver explores how judges identified the main legal issues in federal cases dealing with national security through the mode of legal analysis they used to reach or justify their conclusions. He explains how national security/transparency cases are as much about separation of powers issues as they are about balancing transparency with national security. In addition, although legal precedent remains important, judges have other, less traditional tools at their disposal. Finally, Silver concludes that the ability to selectively choose which legal issue to focus on and rely on some modes of legal analysis while ignoring others gives the judges the flexibility to mold la regarding national security information.

Excerpt

In the years following the Sept. 11, 2001, terrorist attacks on New York and Washington, D.C., the U.S. government took numerous and extraordinary steps to increase secrecy in the name of national security. Although some authors assert that the administration of President George W. Bush was notably secretive even before the attacks, in the years following 9/11 the government created secret military tribunals, ordered court proceedings closed to the public, claimed executive privilege in a wide variety of situations, increased the use of the state secrets privilege to prevent the disclosure of national security information in court proceedings, blocked access to the records of

See, e.g., Jane E. Kirtley, Transparency and Accountability in a Time of Terror: the Bush Administration’s Assault on Freedom of Information, 11 comm. L. & POL’Y 479, 484-89 (2006); Peter M. Shane, Social Theory Meets Social Policy: Culture, Identity and Public Information Policy After September 11, 2 isjlp i, iv (2006); Adam Clymer, Government Openness at Issue as Bush Holds on to Records, N.Y. times, Jan. 3, 2003, at A1.

Military Order, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57833-57836, Nov. 13, 2001.

Michael Creppy, Chief Immigration Judge of the United States, Memorandum: Cases Requiring Special Procedures, Sept. 21, 2001, available at http://fi1.findlaw.com/news.fmdlaw.com/hdocs/docs/aclu/ creppy092101memo.pdf.

See, e.g., Cheney v. United States District Court, 542 U.S. 367 (2004); George W. Bush, Memorandum: Disclosures to Congress, Oct. 5, 2001, available at http://www.fas.org/sgp/news/2001/10/gwb100501.html; George W. Bush, Memorandum for the Attorney General: Congressional Subpoena for Executive Branch Documents, Dec. 12, 2001, available at http://www. whitehouse.gov/news/releases/2001/12/20011213-1.html; pfiab plays secrecy games, Federation of American Scientists, secrecy news, vol. 2002, no. 77, Aug. 15, 2002, available at http://ftp.fas.org/sgp/news/secrecy/2002/08/081502.html.

William G. Weaver & Robert M. Pallito, State Secrets and Executive Power, 120 poli. sci. Q. 85, 86 (2005). the state secrets privilege, a judicial creation, is most often used by executive branch officials in civil court cases to protect against subpoenas, discovery motions and other judicial requests for

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