ACS is pleased to distribute an Issue Brief by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago, entitled “On Secrecy and Transparency: Thoughts for Congress and a New Administration.” In this Issue Brief, Professor Stone examines government secrecy and transparency against the backdrop of the actions of President George W. Bush’s Administration in the wake of the September 11, 2001 attacks. As Professor Stone explains, “[t]o achieve an unprecedented level of secrecy, the Bush Administration has promulgated secret policies, narrowly interpreted the Freedom of Information Act, broadly interpreted its power to classify government documents, closed deportation proceedings from public view, redacted vast quantities of ‘sensitive’ information from government documents and websites, fired and otherwise punished government whistleblowers, jailed journalists for refusing to disclose confidential sources, threatened to prosecute the press for publishing confidential information, and aggressively invoked both executive immunity and the state secrets doctrine.” Professor Stone considers valid national security concerns that compel government secrecy, but weighs them against concerns that compel transparency, such as the need in a democracy for citizens to know what their representatives are doing and be able to hold them politically accountable. He reminds readers that “[a]lthough the danger to the United States is quite real and not to be underestimated, so too is the danger of an overly aggressive insistence on secrecy.” Evaluating complicated competing interests, Professor Stone considers solutions and concludes with recommendations, including: (1) curbing the authority of the executive to classify information solely because its disclosure has the potential to harm national security; (2) providing greater protection for national security whistleblowers, with express protection for public employees who disclose unconstitutional or otherwise unlawful government actions; (3) clarifying and limiting the use of the state secrets privilege; and (4) establishing a qualified journalist-source privilege.

ACS is pleased to distribute an Issue Brief by Anthony F. Renzo, Professor of Law at Vermont Law School, entitled, “A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals.” In cases such as Al-Marri v. Wright, a case presently awaiting decision on rehearing in the Fourth Circuit, the Bush Administration has claimed authority to subject civilians detained in the United States to trial by military commission. In this Issue Brief, Professor Renzo examines and evaluates the Administration’s claim, finding it as unprecedented in scope as it is lacking in historical support. Professor Renzo explains that “[t]he Constitution places the power to punish a civilian for wrongdoing, including criminal conduct in support of enemy organizations, in the hands of an independent civilian court and jury.” Examining the constitutional text and English and American history, Professor Renzo traces a profound resistance to the encroachment of military tribunals on the jurisdiction of civilian courts, noting “[t]he very purpose of the original English common law right to trial by a civilian jury was to protect against the oppression of the King’s use of military courts and judges who owed their loyalty to the King.” Professor Renzo concludes that constitutional text and tradition require that a civilian be provided with a civilian jury trial unless a civilian court determines that the detainee is not a civilian, but is rather “either under the command of the enemy’s armed forces or engaged in battlefield hostilities against American forces.”