LCB_11_4_ART11_KREIMER.DOC 12/5/2007 2:28:20 PM RAYS OF SUNLIGHT IN A SHADOW “WAR”: FOIA, THE ABUSES OF ANTI-TERRORISM, AND THE STRATEGY OF TRANSPARENCY by Seth F. Kreimer∗ 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 subconstitutional 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. I. INTRODUCTION .............................................................................. 1142 II. TRANSPARENCY, TEXT, AND CONSTITUTIONAL PRACTICE 1144 III. STRUCTURES OF TRANSPARENCY AND A “GLOBAL WAR ON TERROR”..................................................................................... 1147 A. A Low Speed Bump: The Case of the Post-September 11 Dragnet...... 1148 B. Transparency Mechanisms as Audits: Guantanamo Tribunals and the Patriot Act................................................................................ 1164 1. FOIA Alone: Sunlight on the Guantanamo Tribunals............... 1164 2. The Campaign to Illuminate the Patriot Act.............................. 1168 C. Transparency and Torture: Democracy and the Problem of “Unknown Unknowns” .................................................................. 1185 1. The Policy that Dares not Speak its Name.................................. 1187 2. Seeping Transparency: “Information Wants to Be Free”............. 1192 a. Leaks and Hints................................................................ 1192 ∗ Kenneth W. Gemmill Professor of Law, University of Pennsylvania Law School. This Article has benefited from the comments of Cary Coglianese, Serena Mayeri, and Kim Scheppele, as well as the fine research assistance of Nishchay Maskay, Alexandra Fellowes, and Eugene Novikov. Each is entitled to my deep thanks, but none bears responsibility for remaining errors or misunderstandings. 1141 LCB_11_4_ART11_KREIMER.DOC 12/5/2007 2:28:20 PM 1142 LEWIS & CLARK LAW REVIEW [Vol. 11:4 b. Internal Scrutiny and Abu Ghraib ..................................... 1197 3. Transparency Deployed: The Slow March Toward Known Knowns ................................................................................... 1200 4. Sunlight and Disinfection?....................................................... 1209 IV. THE STRATEGY OF TRANSPARENCY IN DARK TIMES.............. 1215 I. INTRODUCTION A story of which I have always been fond concerns a friend of W.C. Fields, the actor Thomas Mitchell, who approached the elderly comedian as Fields lay mortally ill. Observing Fields, a famous religious skeptic, deeply engrossed in the study of a Bible, the friend expressed some surprise: “You’ve never been interested in the Bible, Fields, what are you doing with it now?” Fields looked up, paused, and responded in his characteristic voice, “looking for loopholes m’boy, looking for loopholes.” The rule of law in the United States has just been through a near- death experience. The current administration has sought to flout constitutional principle by establishing law-free zones and constitutional black holes. It has engaged in duplicitous parsing of its legal obligations, and has invoked extralegal executive authority. In the process, it has undertaken what Vice President Cheney described from the outset as an effort to “work [through] . the dark side” and “spend time in the shadows” in pursuing what it characterizes as a “Global War on Terror.”1 In the face of these initiatives, for the better part of six years, the tripartite constitutional structure which is said to guard against usurpation has remained largely quiescent. Congress was initially paralyzed by the aftershocks of the attacks of September 11, and, after the President’s party gained control of the Senate in 2002, by party loyalty. The courts awaited justiciable controversies, delayed by a combination of secrecy and sequestration of potential plaintiffs. When confronted with legal challenges, judges often proved unwilling to exercise the power of judicial review. Yet the Republic stands, and as we meet today our nation has begun slow progress toward effective limits to the abuses of the Global War on Terror. What follows is an effort to read the last six years with the eyes of W.C. Fields. Faced with a landscape apparently inhospitable to hopes for the rule of law, I will be “looking for loopholes.” I seek to identify 1 Interview by Tim Russert with Dick Cheney, Vice President, on Meet The Press (Sept. 16, 2001), available at http://www.whitehouse.gov/vicepresident/ news-speeches/speeches/vp20010916.html. Cheney continued by saying that “[a] lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. [I]t’s going to be vital for us to use any means at our disposal . .” Id. LCB_11_4_ART11_KREIMER.DOC 12/5/2007 2:28:20 PM 2007] THE STRATEGY OF TRANSPARENCY 1143 unacknowledged resources that set the stage for a return to constitutional values. I focus on four case studies in which challengers have sought to shine light on a shadow “war,” turning from litigation that directly challenged an overreaching Executive to adopt a strategy of transparency. In each, critics have used legal tools to generate information regarding abuses; that information in turn has laid the groundwork for legal and political initiatives to return to the rule of law. 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. And in each of the case studies, the determined efforts of the administration to keep details of abuses from the public testify in a backhanded fashion to the existence of an ongoing constituency for the rule of law. Part II begins with a brief account of the importance of transparency, the paucity of guarantees for it in the constitutional text, and the development of frameworks of transparency as part of our constitutional practice in the last generation. Part III.A traces the efforts to uncover the dimensions of the initial domestic dragnet for terrorist suspects in the aftermath of the trauma of September 11. It sets forth the interaction among state and federal Freedom of Information Act frameworks and litigation surrounding the closure of deportation proceedings. It concludes with the subsequent investigation and report by the Department of Justice (DOJ) Office of Inspector General, which retrospectively revealed many of the abuses of the dragnet. Part III.B examines two efforts to use transparency mechanisms to audit ongoing antiterrorist initiatives. Part III.B.1 reviews the successful use of the Freedom of Information Act to pry loose transcripts of the Combatant Status Review Tribunals in Guantanamo along with information regarding individuals incarcerated there. Part III.B.2 sets forth the more complex campaign to bring to light the ways in which the novel surveillance mechanisms authorized by the Patriot Act have been used domestically in the “War on Terror.” That campaign combined the efforts of a coalition deploying political advocacy, FOIA requests, and substantive constitutional litigation. It ultimately generated both investigations by the Department of Justice Inspector General and the imposition of further disclosure and auditing requirements as a condition for the renewal of the Patriot Act. Part III.C details the efforts to expose the policy of coercive interrogation adopted by the current administration in the “War on Terror.” Resistance to that policy within the government generated both internal records of opposition and initial leaks regarding abuses. FOIA requests and litigation, enabled both by the disclosure of the existence of LCB_11_4_ART11_KREIMER.DOC 12/5/2007 2:28:20 PM 1144 LEWIS & CLARK LAW REVIEW [Vol. 11:4 documents sought and by a public controversy that could ground a legal claim for expedited processing, in turn allowed external critics to obtain documents that authenticated the accusations. Those disclosures impeached the policy and sparked investigations by internal watchdogs, as well as judicial and congressional intervention. Throughout the process, the integrity of civil servants has proven an essential condition