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38 Hastings Const. L.Q. [i] (2010-2011)

handle is hein.journals/hascq38 and id is 1 raw text is: HASTINGS CONSTITUTIONAL LAW QUARTERLY VOLUME 38 FALL 2010 NUMBER 1 Table of Contents ARTICLES BETWEEN SAFETY AND TRANSPARENCY: PRIOR RESTRAINTS, FOIA AND THE POWER OF THE EXECUTIVE by Devin S. Schindler........................................1 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 non- confidential 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. SEEKING 'COMMON GROUND:' A SECULAR STATEMENT by Bruce Ledewitz ..........................................49 It is clear that there is a crisis today in the interpretation of the Establishment Clause. Not only do we not know what the Clause means, we do not even have clear opposing constitutional visions. At the same time, we have today a related crisis in American political life between religious believers and nonbelievers over the proper place of religion in politics. Finally, we have today in the West, a crisis of social morals as older religious certainties fade and secularism drifts dangerously close to nihilism. In my view, all of these issues are related. The answer to all three

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