By Geoffrey R. Stone, a constitutional law professor at the University of Chicago, and chair of the American Constitution Society’s Board of Directors. Professor Stone will be a panelist during an ACS Symposium this Thursday on legal policy shifts in the ten years since 9/11. Register for the symposium here.
War inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years after 9/11, the Bush administration embraced a series of policies — including torture, surveillance of private communications, clandestine detention of American citizens, and secret prisons in Eastern Europe — that undermined the fundamental American values of individual dignity, personal privacy, and due process of law.
In my view, however, the most dangerous policy of the Bush administration was its attempt to hide its decisions from the American public. In an effort to evade the constraints of separation of powers, judicial review, checks and balances, and democratic accountability, the Bush administration systematically promulgated its policies in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, punished government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs.
By shielding its decisions from legal, congressional, and public scrutiny, the Bush administration undermined the single most central premise of a self-governing society: it is the citizens who must evaluate the judgments, policies, and programs of their representatives. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”