Academic Commentary on Government Transparency and Accountability

4.2.12 WC: 191694 government, but of non-governmental organizations such as the media, the academy and, most important, the citizenry. As I wrote in Rights from Wrongs: This balance is part of our dynamic system of governing, which eschews too much concentration of power. American sovereignty, unlike that of most other Western democracies, does not reside in one branch of government or even in the majority of the people. Our sovereignty is a process, reflected in governmental concepts such as checks and balances, separation of powers, and judicial review. More broadly it is reflected in freedom of the press, separation of church from state, academic freedom, the free-market economy, antitrust laws, and other structural and judicial mechanisms that make concentration of power difficult. These checks on abuse cannot operate effectively in the absence of visibility, accountability and public discourse. What is needed, and what is sorely lacking, is a theory of when governmental actions may appropriately be kept secret (and for how long) and when they must be subject to open debate and accountability. I have been seeking to contribute to the development and articulation of that theory by writing and teaching about areas of law in which the criteria and standards for state action are either hidden from public view or so vague that they invite the exercise of untrammeled discretion not subject to the rule of law. Perhaps it is my interest in this issue of standards and accountability that is one of the reasons why I chose to focus my academic career around areas such as the prediction and prevention of harmful conduct, where there are few articulated standards and little public accountability. Or perhaps it was my focus on prediction and prevention that sensitized me to the more subtle issue of lack of visible standards and criteria. Whichever was the chicken and whichever the egg, these two paramount areas of my interest have worked symbiotically to generate my body of scholarship. My insistence on articulate standards and accountability has not been without controversy. When I espoused the need for “torture warrants” to cabin the widespread use of extreme methods of interrogation, such as waterboarding, by the Bush Administration, I was accused of being an apologist for torture. When I have sought to learn the actual criteria by which students are admitted pursuant to affirmative action programs, I have been accused of insensitivity to racial issues. When I have demanded clearly articulated rules for limiting “offensive” speech on campus, I have been accused of favoring censorship. (More on these issues later.) When I have insisted on neutral standards of human rights, articulated with clarity. I have been accused of being a special pleader for Israel. The reality is that neutral standards and public accountability are essential to democratic governance. That is why I have devoted so much of my writing and teaching to these issues over the years. I will continue to work on these issues as long as I can think, write and speak—even after my active teaching career at Harvard comes to an end. I am a teacher first and foremost. All of my work—classroom pedagogy, academic and popular writing, lecturing, media appearances, even litigation—is teaching. Only the audience is different. 81 HOUSE_OVERSIGHT_017168