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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