National security and transparency: the legal frameworks and factors federal courts use to balance competing democratic values

Although following the Sept. 11, 2001, terrorist attacks on New York and Washington, D.C., the U.S. government took numerous and extraordinary steps to increase secrecy in the name of national security, government secrecy was not created by the war on terror. The tendency of those in power to suppress information that might be dangerous, damaging, or politically embarrassing is part of our political heritage, long predating the rise of democracy. In the United States, however, secrecy conflicts with the cherished democratic values of freedom of expression and government transparency. This dissertation examines the legal, theoretical, and public policy arguments used by federal courts when they address conflicts between government secrecy and freedom of expression or transparency. It explores how federal courts identify the main legal issues present in a case, or frame the case, and the legal factors--such as precedent, framers' intent/originalism, or textualism--they use to reach or justify their conclusions. The research concludes the majority of national security cases are as much--if not more--about separation of powers issues as they are about balancing the First Amendment with national security. The opinions often discuss the inherent power of the courts vis-à-vis the executive or legislative branch or grapple with how much deference the courts should give to the executive branch when dealing with national security information. This is particularly true in post-publication punishment and access cases, areas in which the U.S. Supreme Court has not established a jurisprudential regime strong enough to cross into national security information cases. In addition, while the research supports previous scholarship that has emphasized the importance of precedent in judicial decision making, the cases also demonstrate that jurists often use First Amendment and democratic theory to support or justify their decisions. This is particularly true in situations in which the courts cannot rely on textual analysis or framers intent. Finally, the dissertation posits that the ability to frame cases and selectively rely on some legal factors or rhetorical devices while ignoring others gives the courts a great deal of flexibility to mold law regarding national security information as they see fit