Illegal Secrets

When can the government keep its illegal action secret? In spite of the strong incentive for government officials and institutions to hide unlawful conduct from the public and their demonstrated tendency to do so, both public information access doctrines and the broader normative discussion of government secrecy inadequately answer this question. The questionable legality and pervasive secrecy of recent national security activities—in particular, the National Security Agency’s (“NSA’s”) collection of millions of Americans’ phone records, the government’s unilateral and self-serving decision to characterize illegal conduct like torture as an “intelligence method” protected from public disclosure, and the government’s position that it can secretly kill suspected terrorists through unmanned drone strikes abroad without public oversight of the claimed legal authority to do so—underscore the extent to which democratic accountability is undermined when government secrecy and the prospect of illegality converge. This Article examines when the illegality (as well as the possible illegality) of executive action should preclude government attempts to keep its conduct secret. Or, to put it simply, it examines when a government secret becomes an illegal secret. In addressing the under-theorized relationship between secrecy and illegality with respect to government information control, this Article also examines the insufficiently acknowledged problem of shallow secrets that conceal illegal or potentially illegal government conduct. In recent years, the problem of illegal secrets has surfaced with increasing frequency and urgency. In a variety of Freedom of Information Act (“FOIA”) cases, when members of the public have sought information about controversial and legally suspect government policies and programs courts have largely deferred to the Executive’s claims that it is entitled to withhold information irrespective of whether the activities at issue violate the law. Indeed, numerous courts have expressly held that government illegality is irrelevant when evaluating the appropriateness of government secrecy decisions. Examining this troubling trend, this Article argues that the legality of secret government conduct is a vital consideration that must be prominent in an information disclosure regime premised upon the goal of democratic accountability. It therefore proposes that the established illegality of the underlying conduct sought to be exposed is a powerful basis for compelling disclosure of government information. Only in the most pressing and exceptional cases should executive claims of a national security priority present a paramount justification for withholding information from the public. This Article further posits that where there is a plausible allegation of illegality, courts must consider whether sanctioning government secrecy will thwart public debate regarding the lawfulness of the conduct concealed, such that the more plausible the allegation of illegality, the stronger the basis for disclosure

#MeToo in Prison

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment. For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison. Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root. PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice. And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis. Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic. This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm. As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States. At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades. New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake. Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group. The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff. It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons. This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm

The Preempting of Equal Protection for Immigrants?

Recent debates about immigration have focused overwhelmingly on unauthorized migration and the respective roles of the federal and state governments in enforcing immigration law. But that emphasis in law and theory has obscured a critical civil rights question of our time: what measure of equality is due to those with the opportunity to abide by the rules of entry, who are now lawfully present within the United States? Although the United States Supreme Court recognized decades ago that lawfully present migrants are a discrete and insular minority entitled to heightened judicial protection under the Equal Protection Clause of the Fourteenth Amendment, in recent years, a body of little-analyzed federal and state court decisions has eroded that longstanding precedent, elevating deference to the federal government’s power to set immigration policy over a previously established constitutional commitment to immigrants’ equal treatment by the states. This Article critically explores this development and argues that although federalism may legitimately serve as a lens through which to gauge arbitrary discrimination, federalism principles should not stealthily serve as a preemption-like doctrine beneath the surface in equal protection cases. To reign in federalism’s potentially disruptive impact on immigrants’ rights, this Article argues that courts should consider federalism principles only as an interpretative tool in equal protection cases involving migrants and recommit to immigrants’ long settled right to equal treatment by the states

Denialism and the Death Penalty

The persistence of capital punishment as a constitutional form of punishment in the United States reflects deep denialism about the practice and the role of the courts in regulating it. Denialism allows judges to embrace empirically contested narratives about the death penalty within judicial decisions, to sanction execution methods that shield and distort the pain associated with state killing, and to ignore the documented influence of race on the death penalty’s administration. This Article draws upon the concept of denialism from the transitional justice context, a theory that explicates denial in responses to mass human rights violations and collective violence. It describes mechanisms of denial in judicial regulation of capital punishment and argues that conditions will not be ripe for judicial abolition of the death penalty until this denialism is better understood and confronted. I identify potential entry points for exposing and overcoming denialism in Eighth Amendment analysis

Border Enforcement as State-Created Danger

(Excerpt) A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm. The harm of U.S. border policy is never far from the surface. For example, during the Trump Administration, policies such as the obversely-named Migrant Protection Protocols (“MPP”) and many others purported to function as measured—and even humanitarian—responses to a “crisis” of refugees at the southern border. Similarly, both the Trump and Biden Administrations invoked Title 42 health emergency powers during the pandemic to close off asylum processing for migrants. Both administrations framed this policy as a critical public health measure. In reality, however, these policies did little to achieve their purported policy aims. They instead sought to prevent migration and exposed migrants, including asylum seekers, to severe, and even deadly, harm

What do you think overdiagnosis means? A qualitative analysis of responses from a national community survey of Australians

OBJECTIVE: Overdiagnosis occurs when someone is diagnosed with a disease that will not harm them. Against a backdrop of growing evidence and concern about the risk of overdiagnosis associated with certain screening activities, and recognition of the need to better inform the public about it, we aimed to ask what the Australian community understood overdiagnosis to mean. DESIGN, SETTING AND PARTICIPANTS: Content analysis of verbatim responses from a randomly sampled community telephone survey of 500 Australian adults, between January and February 2014. Data were analysed independently by two researchers. MAIN OUTCOME MEASURES: Analysis of themes arising from community responses to open-ended questions about the meaning of overdiagnosis. RESULTS: The sample was broadly representative of the Australian population. Forty per cent of respondents thought overdiagnosis meant exaggerating a condition that was there, diagnosing something that was not there or too much diagnosis. Twenty-four per cent described overdiagnosis as overprescribing, overtesting or overtreatment. Only 3% considered overdiagnosis meant doctors gained financially. No respondents mentioned screening in conjunction with overdiagnosis, and over 10% of participants were unable to give an answer. CONCLUSIONS: Around half the community surveyed had an approximate understanding of overdiagnosis, although no one identified it as a screening risk and a quarter equated it with overuse. Strategies to inform people about the risk of overdiagnosis associated with screening and diagnostic tests, in clinical and public health settings, could build on a nascent understanding of the nature of the problem

Storing and sharing wisdom and traditional knowledge in the library

Traditional library practice focuses on print collections and developing collections of materials that have been published, which means the documents have gone through some kind of review or vetting process. This practice leaves a wide swath of potential knowledge out of the collection. For example, indigenous knowledge, beliefs, and experience are different, in that they do not undergo the same review or vetting process; we might refer to these types of content as wisdom. Non-print collections, such as collections of recorded oral histories, represent less traditional forms of knowledge. Human libraries push the boundaries further in the quest to integrate wisdom and lived experience into library collections. This paper delineates the relationship between wisdom and knowledge that arose during a phenomenological study of the everyday information practices of Kenyan university women. The women were asked to photograph everyday events from their life and describe what they saw. One finding was a divergent presentation of wisdom and knowledge. Because the women were describing this in relation to their education, we assert that this demonstrates a need to reconsider positivist assumptions in library science, bringing what the women called wisdom into the stacks. How, though, can wisdom be stored and shared?Includes bibliographical references

Public opinions about overdiagnosis:A national community survey

Despite evidence about the "modern epidemic" of overdiagnosis, and expanding disease definitions that medicalize more people, data are lacking on public views about these issues. Our objective was to measure public perceptions about overdiagnosis and views about financial ties of panels setting disease definitions.We conducted a 15 minute Computer Assisted Telephone Interview with a randomly selected community sample of 500 Australians in January 2014. We iteratively developed and piloted a questionnaire, with a convenience sample (n=20), then with participants recruited by a research company (n=20). Questions included whether respondents had been informed about overdiagnosis; opinions on informing people; and views about financial ties among panels writing disease definitions.Our sample was generally representative, but included a higher proportion of females and seniors, typical of similar surveys. American Association for Public Opinion Research response rate was 20% and cooperation rate was 44%. Only 10% (95% CI 8%-13%) of people reported ever being told about overdiagnosis by a doctor. 18% (95% CI 11%-28%) of men who reported having prostate cancer screening, and 10% (95% CI 6%-15%) of women who reported having mammography said they were told about overdiagnosis. 93% (95% CI 90%-95%) agreed along with screening benefits, people should be informed about overdiagnosis. On panels setting disease definitions, 78% (95% CI 74%-82%) felt ties to pharmaceutical companies inappropriate, and 91% (95% CI 82%-100%) believed panels should have a minority or no members with ties. Limitations included questionnaire novelty and complexity.A small minority of Australians surveyed, including those reporting being screened for prostate or breast cancer, reported being informed of overdiagnosis; most believed people should be informed; and a majority felt it inappropriate that doctors with ties to pharmaceutical companies write disease definitions. Results suggest strategies to better inform people about overdiagnosis, and review disease definition processes, have significant public sympathy