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Hastings Constitutional Law Quarterly

Abstract

The Freedom of Information Act, and, to a lesser extent, the Constitution, embody a democratic commitment to transparent and open government. Roughly balanced against this commitment is the need in selected circumstances to prevent the release of information that could lead directly or indirectly to tangible harm to America and its interests. Most recently, the debate between safety and transparency came to the forefront in the case American Civil Liberties Union v Department of Defense, where the Second Circuit ordered the President to release a series of nonconfidential but potentially inflammatory pictures showing prisoner abuse at the Abu Ghraib prison. This tension cannot be resolved by divining "moral imperatives" or balancing conflicting interests. Rather, this Article makes the argument that the answer to this dilemma lies in the debate over presidential powers. Who makes the decision to suppress information and why that decision was made is as important, in constitutional terms, as the issue of whether this kind of information should be released in the first instance.

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