Rays of Sunlight in a Shadow War: FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency

Abstract

In the wake of the September 11 attacks, the Global War on Terror has marginalized the rule of law. From the dragnet detentions in the aftermath of the initial attacks, to novel and secretive surveillance authority under the Patriot Act, to the incarceration and torture of enemy combatants, the administration's war has sought to establish zones of maneuver free of both legal constraint and of political oversight. In the first half decade of these efforts, the tripartite constitutional structure which is said to guard against executive usurpation remained largely quiescent. Opponents both inside and outside of the government turned instead to sub-constitutional structures to expose this self-avowed dark side, and to lay the foundation for a return to the rule of law. This Article examines four case studies of this strategy of transparency. At the center of each account lies the Freedom of Information Act (FOIA). The studies highlight, however, the crucial roles played by a broader complex of structures of transparency that have come to constitute the framework of national governance during the last generation, the importance of the integrity of the civil servants administering those structures, and the fulcrum of sustained advocacy.

Keywords: constitutional law, politics, war on terror, PATRIOT Act, enemy combatants, Freedom of Information Act