Misblog

Originally Published April 30, 2008; Updated and Republished May 12, 2008:

UPDATED 05/12/2008 "One of the charges against King George III in the Declaration of Independence was 'altering fundamentally the Forms of our Governments.' The oath of Allegiance for New Citizens requires: 'I will support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic ... and bear true faith and allegiance to the same.' But how can that oath be honored if American citizens, new and old, do not know 'the legal standards under which the government is actually operating at any given moment?'

...Among the enormous responsibilities of the next president and Congress will be to restore the rule of law, and not incidentally, the Constitution on which it stands — and let the sunshine in!"--Nat Hentoff, May 2008 (see below for entire article)--

Today, the Committee on the Judiciary, Subcommittee on Constitution held hearings on “Secret Law and the Threat to Democratic and Accountable Government”. According to Rivkin liberty balances order—a dubious proposition—not receiving an answer to a question may be a strong indication that the wrong question is being asked.(see Rivkin's testimony)

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In any event not getting an answer to a question most certainly does not indicate that you've asked a correct question.

It's time to objectively examine whether secrecy equates to candid advice and whether candid advice is preferable to impartial, accurate, and accountable advice (see Elwood's testimony).

Was it really candid for John Yoo to opine that torture equates with major organ failure and anything you do short of organ failure is not torture? Were David Addington, Richard Cheney, and William Haynes really looking for candid advice or setting up their patsy?

• Steven Aftergood - director, Project on Government Secrecy, Federation of American Scientists

  “...Secret law that is inaccessible to the public is inherently antithetical to democracy and foreign to the tradition of open publication that has characterized most of American legal history...”--Aftergood--

• Bradford Berenson - partner, Sidley Austin LLP

  "...Recent advances in information technology have made more information available to more people than ever before in human history, and this has greatly magnified the advantages accruing to a society such as ours that values openness, criticism, and debate.

  Because openness is such a venerable American strength, we all have an understandable tendency to regard secrecy of any sort, and especially governmental secrecy, with suspicion and distrust. This conventional wisdom was well expressed recently by the United States Court of Appeals for the Sixth Circuit when it said, “Democracies die behind closed doors.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002)..."--Berenson--

• Dawn Johnsen - professor, Indiana University School of Law, Bloomington, Ind., and former acting assistant attorney general for the office of legal counsel

  “...Excessive executive branch secrecy undoubtedly threatens the proper functioning of our constitutional democracy...”--Johnsen--

• Heidi Kitrosser - associate professor of law, University of Minnesota Law School, Minneapolis, Minn.

  “...over the past several years, we have seen a disturbing trend whereby the executive branch has taken its structural capacities to secretly implement law and abused them to secretly make new law and to circumvent established law. The damage of this trend is exacerbated by the fact that the executive branch has circumvented not only substantive law but also procedural law, such as statutory mandates to share information with Congress.”--Kitrosser--

• J. William Leonard - former director, Information Security Oversight Office, Leonardtown, Md.

  "...The March 14, 2003 memorandum on interrogation of enemy combatants was written by DoJs Office of Legal Counsel (OLC) to the General Counsel of the DoD [John Yoo’s tragic torture memo]. By virtue of the memorandum’s classification markings, the America people were initially denied access to it. Only after the document was declassified were my fellow citizens and I able to review it for the first time. Upon doing so, I was profoundly disappointed because this memorandum represents one of the worst abuses of the classification process that I had seen during my career, including the past five years when I had the authority to access more classified information than almost any other person in the Executive branch.”--Leonard--

• David Rivkin - partner, Baker Hostetler

  “...In my view, modern democracies are not capable of sustaining protracted military engagements without the legitimacy afforded by the laws of war...I frequently pose the following question: If you don’t like how the Bush Administration has altered the peacetime balance between liberty and order, how would you alter the balance? I have never received a serious answer...”--Rivkin--

• John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel

  "...Protecting the confidentiality of OLC opinions helps ensure that decision makers will be willing to seek legal advice before they act. Indeed, without confidentiality, officials may be reluctant to seek our advice at precisely those critical times when it is most needed.

  Confidentiality also helps to ensure that the legal advice that policymakers receive will be completely candid..."--Elwood--

Web:

• UPDATED 05/12/2008 Washington Times, Nat Hentoff, Let the sunshine in
• Hearing: "Secret Law and the Threat to Democratic and Accountable Government "