PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter
PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter
PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter
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“An illuminating discussion of the costs of secrecy and how Congress
and the Courts have condoned such an anti-democratic state of affairs.
Its attention to how European courts and institutions have more
vigorously challenged governmental claims of secrecy is exceptional.”
Kent Roach, Professor of Law and Chair in Law and Public
Policy, University of Toronto
“With insightful analysis, Sudha Setty demonstrates how the misuse of
secrecy by governments in the United States and other countries has
done serious damage to individual rights, democratic values, and the
rule of law. We need to restore legislative and judicial checks on
misleading executive assertions.”
Louis Fisher, Scholar in Residence, The Constitution Project
“Sudha Setty writes with remarkable dexterity about the exponential
increase in the powers of the state to remain secret while enhancing
national security regimes in the war against terror. Setty gives a com-
prehensive account of how national security secrecy is enabled legally
and politically in contemporary democracies at the expense of struc-
tural accountability, rule of law, and fundamental rights.”
Ujjwal Kumar Singh, Professor, Department of Political Science,
University of Delhi, Delhi, India
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national security secrecy
Excessive government secrecy in the name of counterterrorism has had a corrosive effect
on democracy and the rule of law. In the United States, when controversial national
security programs were run by the Bush and Obama administrations – including in areas
of targeted killings, torture, extraordinary rendition, and surveillance – excessive secrecy
often prevented discovery of those actions. Both administrations insisted they acted
legally, but often refused to explain how they interpreted the governing law to justify
their actions. They also fought to keep Congress from exercising oversight, to keep courts
from questioning the legality of these programs, and to keep the public in the dark. Early
indications suggest an even more aggressive stance by the Trump administration with
regard to resisting oversight and accountability. Similar patterns have arisen in other
democracies around the world. In National Security Secrecy, Sudha Setty takes a critical
and comparative look at these problems and demonstrates how principles of government
transparency, privacy, and accountability should provide the basis for reform.
Sudha Setty has written dozens of articles on national security and comparative
constitutional law and edited Constitutions, Security, and the Rule of Law (2014).
She currently serves on the editorial board of the Journal of National Security Law
and Policy and has previously served as chair of the Comparative Law, Law and
South Asian Studies, and National Security Law sections of the Association of
American Law Schools. She was a Fulbright Senior Specialist at the Chinese
University of Hong Kong Faculty of Law. Setty teaches at Western New England
University School of Law, where she has twice won teaching awards.
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ASCL STUDIES IN COMPARATIVE LAW
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National Security Secrecy
comparative effects on democracy and the
rule of law
SUDHA SETTY
Western New England University School of Law
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© Sudha Setty 2017
This publication is in copyright. Subject to statutory exception
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First published 2017
Printed in the United States of America by Sheridan Books, Inc.
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Library of Congress Cataloging-in-Publication Data
Names: Setty, Sudha N., author.
Title: National security secrecy : comparative effects on democracy and the
rule of law / Sudha Setty, Western New England University School of Law.
Description: Cambridge, United Kingdom ; New York : Cambridge University
Press, 2017. | Series: ASCL Studies in Comparative Law | Includes
bibliographical references and index.
Identifiers: LCCN 2016056474 | ISBN 9781107130623
Subjects: LCSH: Secrecy – Law and legislation – Great Britain. | Secrecy – Law
and legislation – India. | National security – Law and legislation – Great
Britain. | National security – Law and legislation – India. | Privacy, Right
of – Great Britain. | Privacy, Right of – India. | Government
information – Law and legislation. | Democracy. | Rule of law.
Classification: LCC K3263 .S48 2017 | DDC 343.41/01–dc23
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For Matthew
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Contents
Acknowledgments page x
Introduction 1
2 Congressional Complicity 37
6 India 104
Conclusion 150
Notes 154
Index 229
ix
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Acknowledgments
Although writing is often a solitary endeavor, I owe great thanks to many individuals
who helped me with this project. Peter Margulies and Wadie E. Said encouraged
me over several years to write this book, and offered good advice and feedback
throughout the writing of it. Matt Gallaway at Cambridge University Press has been
a great editor and a staunch supporter from the very first time I met him. I also thank
the editorial and copyediting team at Cambridge University Press for their work and
thoughtful guidance.
Western New England University granted the sabbatical leave that helped me
begin this project. At Western New England University School of Law, Dean Eric
Gouvin provided support for my research, and colleagues Anne Goldstein and
Bruce Miller encouraged me throughout the writing process. Lauren Carasik and
Matthew H. Charity gave generously of their time and wisdom in reading almost
every part of this book in draft form and offering thoughtful and useful critique. Law
librarian Renee Rastorfer and law student Joseph Greenhalgh provided critical
research support, law student Ryan O’Hara provided excellent research assistance
and went above and beyond in assisting in the preparation of this manuscript, and
Sandra Marques provided administrative assistance.
I presented parts of this project at a number of talks, conferences, and workshops,
and benefited greatly from the feedback from participants and commentators at
these venues: National Law School of India University (2016), Indiana University
Maurer School of Law (2016), Annual Meeting of the Law & Society Association
(2015), University of South Carolina Law School (2015), Conference of Asian Pacific
American Law Faculty (2015), University of Connecticut Law School (2015),
Chinese University of Hong Kong Faculty of Law’s Centre for Rights and Justice
(2014), Stanford Law School (2014), and Tilburg University Law and Economics
Center (2014). Elements of this book draw on some of my previous writings:
Surveillance, Secrecy and the Search for Meaningful Accountability, 51 s t an.
j . i nt ’ l l. 6 9 (2015); Country Report on Counterterrorism: United States of
America, 62 am . j . c om p. l . 643 (2014); National Security Interest Convergence, 4
x
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Acknowledgments xi
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Introduction
Secrecy is a powerful tool. Information known to one party but not revealed to others
gives the knowledgeable party leverage, insight and, therefore, power over the other
party. Secrets have helped governments wage war and maintain power throughout
history, and the current political climate regarding counterterrorism is no exception.
The terrorist attacks of September 11, 2001, served as the justification for administra-
tions around the world to keep secret their controversial and sometimes outright
illegal counterterrorism programs. Secrecy is power for individuals as well. Even
within a democracy, the right of individuals to keep secrets over their private matters
is essential to maintaining freedom of thought and speech. After September 11, two
dynamics emerged in many democratic nations: the power of administrations and
central governments to keep their activities secret from the public increased drama-
tically, and governments increasingly saw the ability of individuals living within
democracies to keep secrets as a threat. The result after sixteen years is governments
holding more secrets than is legal or wise, while individuals are often not allowed to
keep their own.
The years since the September 11 attacks have seen a massive increase in the
authority granted to and taken by central governments to exercise counterterrorism
measures, without a concomitant commitment to oversight and accountability.
The result is too much secrecy allowing for abuses and inefficiencies to be covered
up. When controversial and arguably illegal government actions occurred in the
United States under the Bush and Obama administrations in the implementation of
national security policies – including in areas of targeted killings, torture, indefinite
detention, extraordinary rendition, warrantless wiretapping, and surveillance –
national security secrecy often prevented discovery of those actions. Even when
these problematic actions were made public, genuine accountability over abuse
remained elusive: secrecy manifested in nondisclosure of counterterrorism policies;
executive branch decisions providing legal justification for secrecy were themselves
kept secret and beyond oversight; procedural and doctrinal barriers, as well as broad
invocation of the state secrets privilege, prevented litigation from progressing beyond
the pleadings stage; and judicial reluctance to demand transparency over national
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2 The Infrastructure of Secrecy in the United States
security matters glossed over executive overreaching and undervalued the harms to
civil and human rights. This book addresses these problems from a historical, legal
and comparative perspective.
Chapters 1 through 3 consider national security secrecy from the U.S. domestic
perspective, examining the executive, legislative, and judicial branches, respec-
tively. Chapters 4 through 6 shift the analysis outward. Chapter 4 takes up United
Nations and European Union norms for transparency in the area of national security
matters. Chapters 5 and 6 consider how international and domestic forces – both
legal and political – affect national security secrecy in the United Kingdom and
India, respectively. Chapters 7 and 8 consider two other aspects of national security
secrecy. Chapter 7 considers how secrecy is enabled by the outsized fear of terrorism
that has manifested in the public and political classes in many democratic nations,
and Chapter 8 considers how the devaluing of personal privacy by companies and
governments alike has inverted the structure of democracies: we have been rendered
transparent to our governments, and national security secrecy prevents us from even
understanding the extent of it. Together, these chapters illustrate the growth,
manifestations, and challenges of national security secrecy, and consider ways in
which national security secrecy must be scaled back to preserve democratic values
and protect fundamental rights.
**
We live with an overlapping, multifaceted architecture of national security secrecy.
As then–U.S. Secretary of Defense Donald Rumsfeld once observed with regard to
national security threats, “there are known knowns; there are things we know we
know. We also know there are known unknowns; that is to say we know there are
some things we do not know. But there are also unknown unknowns – the ones we
don’t know we don’t know. And if one looks throughout the history of our country
and other free countries, it is the latter category that tend to be the difficult ones.”1
Perhaps ironically, Rumsfeld’s description could also apply to the multi-layered
construct of national security secrecy: the “unknown unknowns” are those policies –
and any abuse of those policies that compromises human and civil rights – that are
kept entirely secret from other branches of government and the public, thereby
shielding the government from effective oversight and accountability. Often the
“unknown unknowns” become known only through public disclosures years later, or
leaks by those with access to the information. To offer just one example, when
National Security Agency (NSA) contractor Edward Snowden’s disclosures of
domestic surveillance practices were made public in June 2013, it became abun-
dantly clear how effective the national security secrecy architecture had been. All
three branches of the U.S. government had worked together in ways that kept the
surveillance programs obscure and out of the public light. The executive branch
generated its own legal interpretations that the relevant statutes authorized broad
collection and storage of the telephonic metadata of all U.S. persons. Much of that
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Introduction 3
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4 The Infrastructure of Secrecy in the United States
government adhere to the principle that the right to privacy ought not to be violated
by the government without individualized cause and without mechanisms of
accountability that can work to ensure that any undercutting of those privacy rights
is justified, and that government power is not abused.2
We can imagine a situation in which a government engages in a high level of
control over a population in a democratically elected country, but the constituents
can see and fully understand the level of control to which they are being subjected
and have the option of changing that level of control through the democratic
process. Under those circumstances, we could still conclude that the transparency
with which the decision-making is occurring means that democratic principles are at
work, at least in a weak form. In this hypothetical world, let us assume that aspiring
politicians hit the campaign trail and tell us with some specificity that in the name of
national security, they will authorize and engage in programs that will monitor our
private communications without a judicial warrant; store available internet and
telephonic data concerning us for years in ways that would allow such data to be
searchable by intelligence agencies without a warrant; and create various programs
involving the profiling, harassment, detention, abuse, torture, financial ruin, and
sometimes targeted killing of certain U.S. citizens and non-citizens, and that many
of those programs have little or no track record of actually bolstering security. Let
us also assume that politicians make clear that the targets of profiling, harassment,
torture, and targeting killing will overwhelmingly be drawn from certain religious
and ethnic minority populations that have little political clout but, since
September 11, have been viewed with skepticism and suspicion by a significant
swath of the U.S. electorate.
Let us then assume that we elect those individuals to Congress and the presidency
anyway. We certainly would not have equal protection of the law or a protection of
the privacy rights that underpin free thought and expression, and, therefore, would
not have a society that upholds the liberal democratic values to which we have
committed. We would, however, have some level of transparency.3 As a nation, we
would have arguably agreed to trade away a commitment to equal protection, due
process and privacy rights in electing these politicians, yet at least some aspect of
democratic control over the actions taken by government in the name of national
security would be maintained. In such a hypothetical situation, we could rely on
a public change of sentiment, or the courts, or Congress armed with an under-
standing of these publicly known programs, to take action – through applying public
pressure, legislation, impeachment, or litigation – to correct some of the abuses of
domestic and international law that may be occurring.4
Yet national security-related policies in the United States have distorted both of
these concepts of democracy: the exceptionalism that is consistently invoked in the
national security context has justified programs that do not comport with our
ordinary understanding of the legal, structural, and value constraints our society
places on the government, and the secrecy with which certain programs are
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Introduction 5
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6 The Infrastructure of Secrecy in the United States
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Introduction 7
the other hand, are problematic from a transparency perspective and are almost
always troubling with regards to accountability, democratic governance, and the
rule of law. In order to consider more fully whether instances of national security
secrecy are problematic from a rule of law perspective, however, we need to add the
gloss of analyzing how national security secrets – particularly those that constitute
a secret law or policy – are developed, deployed, and justified by the government.
I offer three interconnected and overlapping ways in which I see these secrets
developing and being maintained, all of them justified in various ways by the
Bush and Obama administrations as necessary and legal even though they represent
an exceptionalist view of the power that should be allocated when it comes to
national security-related matters.
First and perhaps most obviously, we have secrets based on a straightforward
lack of disclosure by the government. These could be deep secrets, in which
case the public is not even aware that a secret is being kept, or shallow secrets,
in which case the public has some sense of what type of information is being
kept secret. This type of straightforward secret is characterized primarily by the
administration simply not letting Congress, ordinary civilian courts, or the
public know about a policy or program. In the first instance, the CIA detainee
waterboarding program, at least when it began in 2002, fell into this category.18
Likewise, the Bush administration’s Terrorist Surveillance Program, a warrant-
less surveillance program that was put into place in late 2001, was predicated
largely on the assertion that the president had Article II constitutional authority
both to decide whether such a program is necessary and whether to tell any
other entity – including Congress, courts, or the public – about the program.19
Both of these programs moved from being deep secrets to more shallow secrets
as information was leaked to the press and the public more generally. Notably,
once they became public, these two programs were viewed with disfavor by
courts, subsequent administration officials, Congress and much of the public.
All of these actors have found them to be largely unnecessary, unauthorized,
and in violation of existing statutes, if not constitutional and international legal
constraints as well.
Second, we have secrecy that is created or maintained based on misinformation or
misleading partial disclosures by the government. This type of secrecy is particularly
corrosive given the fact that it includes an administration actively concealing
information when another branch of government is trying to exercise its oversight
authority. As discussed earlier, Snowden’s 2013 disclosures of surveillance practices
made clear how effective the national security secrecy architecture had been,
perhaps because inadequate oversight measures lulled us into believing that
accountability existed even when it did not: the executive branch ran its surveillance
based on its own secret legal interpretations; members of Congress that had access to
the NSA and the opportunity to understand the parameters of the NSA metadata
program were not allowed to discuss the program publicly, even during oversight
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8 The Infrastructure of Secrecy in the United States
hearings; and the Foreign Intelligence Surveillance Court issued secret opinions
validating the program.
Before the Snowden disclosures, publicly known oversight was in some ways
a vehicle for the government to give misinformation in order to protect its secrets.
One prominent example stems from a Senate oversight hearing on March 12, 2013, in
which Senator Ron Wyden specifically asked Director of National Intelligence
James Clapper if the NSA was systematically collecting information on the com-
munications of millions of Americans.20 Clapper denied this, yet subsequent revela-
tions by Snowden confirmed that the broad scope of the data collection included
metadata for telephonic communications, as well as content data for emails, texts,
and other such writings.21 After public discussion of the discrepancy in his testimony,
Clapper commented that he gave the “least untruthful” answer possible under the
circumstances.22 Senator Wyden expressed disappointment and frustration that
Clapper misled the Senate while under oath at an oversight hearing.23
Third, we have secrecy that is created by the government’s reinterpretation of the
meaning of words in laws and policies in ways that differ from common under-
standings, and keeping secret the actual meaning being used by the government.
Semantic dissonance occurs in U.S. law and policy regularly and has done so for
centuries. We only need look at Thomas Jefferson’s language in the Declaration of
Independence that “all men are created equal” to see that the literal meaning of
these words was not what Jefferson intended nor what contemporaneous readers of
the Declaration of Independence understood it to be. Instead, the phrase might be
more accurately understood along the lines of “all* men** are created equal***,”
since only white men who were landowners possessed the full legal rights to be
afforded in the United States, and even were one to qualify, the law treated wealthier
men with more privileges than others. However, the difference between the words
on the pages of the Declaration of Independence and the meaning of those
words that was given legal effect was not kept secret – to the extent that all
women, non-white men, poor white men, or other men were being excluded from
this aspirational language, that information was publicly available.24 Ta-Nehisi
Coates made a similar observation with regard to President Abraham Lincoln’s
aspirational language in the Gettysburg Address, in which Lincoln states that “the
government of the people, by the people, for the people, shall not perish from the
earth.” Coates notes that, in 1863, “the people” did not include African Americans,
and observes that “America’s problem is not its betrayal of ‘government of the
people,’ but the means by which ‘the people’ acquired their names.”25 In the
post–September 11 national security context, we can see similar semantic disso-
nance, but without the ability to know whether the words that U.S. administrations
have used to articulate the law surrounding counterterrorism programs mean what
most people think they mean.
The United States has long been party to international treaties prohibiting torture
as well as cruel, inhuman, and degrading treatment. Among them are the Universal
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Introduction 9
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10 The Infrastructure of Secrecy in the United States
debate cannot reach without the benefit of a leak of the Office of Legal Counsel
memoranda containing the Bush administration’s new definition of torture.41
The second example, of DNI Clapper’s semantic dissonance with regard to
whether the NSA “collected” information in its metadata program, suggests
a slightly different and perhaps more complicated problem. Senator Wyden
attempted to engage in oversight of the NSA when he posed his question, but
Clapper relied on the semantic distinction between the common understand-
ing of “collect” and the Defense Department regulatory definition of “collect”
to answer Wyden’s question. Could Wyden have found the 1982 regulatory
definition and used it to ask follow up questions of Clapper? Perhaps. But it
seems clear that if Wyden had used any number of synonyms for “collect,” such
as “gather,” or “intake and store,” Clapper might not have been able to defend
his seemingly disingenuous answer by leveraging a relatively obscure definition.
In that sense, Clapper engaged in a type of constructive secrecy, where the
legally operative meaning of a term may be theoretically available, but if the
administration chooses not to volunteer the meaning that it uses, and if it’s not
clear to oversight bodies that a particular meaning would apply, then it is likely
that the administration could retain secrecy around its policy while denying
that any part of it is secret at all. The alternative, that Senator Wyden’s staffers
would dig through voluminous federal regulations to find each distinct defini-
tion of each and every word that Wyden uses in questions or that Clapper gives
in response, is unrealistic and absurd, which only serves to increase the possi-
bility of administrations using constructive secrecy to justify their actions and
evade serious oversight.
These programs exemplify both substantive national security exceptionalism –
the argument made by a President or administration that sometimes the
government needs to run programs that may be in many respects above the
law – and national security secrecy – the reality that even when Congress or
another body tasked with effecting oversight asks direct questions attempting to
learn about those programs, the administration may decide that it needs to lie,
mislead, or misdirect questioners. Together, these two strands demonstrate the
complexity and corrosiveness of national security secrecy to maintenance of
the rule of law. The first type of secret described here – one of straightforward
non-disclosure – is the kind that is often considered in debates regarding the need
to create better oversight mechanisms for national security secrecy.42 But in many
respects, the second and third types of secrets undermine the rule of law to
a further extent in the sense that congressional, judicial, or public understanding
of a program or its limits may be based on an incomplete or faulty understanding
of the parameters of particular national security programs. The public may
believe that real oversight exists, even when it merely serves as a veneer of
accountability and legitimacy.
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Introduction 11
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12 The Infrastructure of Secrecy in the United States
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Introduction 13
privately and a government that holds secrets that are few in number and vetted as
necessary. As discussed in Chapters 7 and 8, the public’s role vis-à-vis its democra-
tically elected government is on a rather strange footing at this point: our lives are
subject to ever-increasing levels of surveillance by private companies and the
government, even privately held data is made accessible to the government, and
intrusive behavior by federal, state, and local law enforcement has rendered us
transparent to the government. Yet even the programs that the government uses to
gather this information about us is sometimes kept as a deep enough secret that there
are no adequate controls or accountability measures over initiatives that may be
violating our constitutional, civil, and human rights.48
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14 The Infrastructure of Secrecy in the United States
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Introduction 15
The 1950s security-related congressional activity, along with Reynolds and other
contemporary cases, illustrates the early Cold War reality that the public,68 the
judiciary, and Congress had diminished access to the information underlying
security decision-making.69 The end result of Reynolds, where overreaching and
misstatements by the military were unchecked by an overly deferential judiciary,
illustrates early costs of the post–World War II rise of secrecy, which were largely
cemented in the ensuing decades.70
In the post–September 11 era, the same objections to national security secrecy –
relating to government accountability, transparency, and the rule of law – that
were raised in the early Cold War era were resurrected.71 Yet in a variety of
contexts – from the government’s numerous invocations of the state secrets
privilege,72 to a suit challenging the government’s targeted killing program,73
to freedom of information requests regarding the implementation of
post–September 11 security measures74 – absent extraordinary circumstances,
government secrecy claims have generally prevailed over principles of account-
ability, transparency, and open government.
**
The United States is not alone in dealing with these issues. As discussed in
Chapter 4, the post–September 11 pressure on all members of the United Nations
by the Security Council was tremendous; Under Security Council Resolution 1373,
nations were obligated to ramp up their counterterrorism efforts in myriad ways and
needed to report on their work to the U.N. Counter-Terrorism Committee. Like the
United States, both the United Kingdom and India took these mandates to heart.
These nations and their complex dealings with the question of national security
secrecy are taken up in Chapter 5 and 6, respectively. Nations facing serious national
security issues, including the United States, the United Kingdom, and India,
increased the robustness of their counterterrorism efforts in the wake of Resolution
1373.75 Combined with extremely broad definitions of terrorism, these broadly
allocated powers have combatted and rooted out terrorist threats, but have also
placed significant burdens on Muslims and those perceived to be Muslim in all
three countries. Each of these nations has mixed results in terms of transparency,
preservation of rights, benefits to national security, adherence to the rule of law, and
public confidence in institutional legitimacy. In the wake of the Snowden disclo-
sures, these questions have been brought to the forefront by various institutions of
the European Union.
The United Kingdom and India, nations with different structural systems and
histories of dealing with internal and external violence than the United States, are
nonetheless particularly useful comparators for analysis of national security secrecy.
All three nations share a legal heritage and the burden of serious national security
threats. Beyond that, however, these nations enjoy relatively strong and stable
governance structures, as well as a separation of powers and a political process that
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16 The Infrastructure of Secrecy in the United States
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"Then 'tis waste of time to be rude to Him. Civility costs nought
anyway. My old father said to me when I was a child, 'Always touch your
hat to a pair of hosses, William, for you never know who's behind 'em.'"
"I puzzle a good deal upon the subject, and life often flings it
uppermost," answered Bullstone. "In fact so are we built, through education
of conscience, that it's impossible to go very far without being brought up
against God. How often in my secret times of pain do I catch the Name on
my tongue? How often do I say 'My God, my God, what have I done?' I ask
Him that question by night and day. A silly question, too, for I know what
I've done as well as God can. But I know what I've suffered far better than
He can. I went on hoping and hoping, as you bade me, last year. I went
hoping, with one eye on God, like a rat that creeps out of his hole with one
eye on the dog hard by. But the game had to be played out by inches. He
knew that Margery was dying, a few miles away, and He kept it secret from
me and didn't let me hear till it was too late. He planned it, so that I should
just be there after the very last breath was breathed, should touch her before
she was cold, should miss her by seconds. And she longing—longing to
come back to me—to save me. What should we call that if a man had done
it—eh, William?"
"Come and look at my bees, Jacob. A brave swarm yesterday, and poor
Sammy Winter took 'em for me with all the cleverness of a sane man."
"Don't you fret your wits with such stuff, for it won't help you to
patience or wisdom."
"No, it won't bring the dead to life, or lift the brand from me. But I
thresh it out by night and see great things heave up in my mind. Then, when
I jump to put them into words, they fade and I lose them. Reason may be
the work of the devil—his master-stroke to turn us from salvation. You can't
be damned without it; but you can be saved without it. Or would you say a
man can't have a soul to be saved, until he is a reasonable creature, built to
separate good from evil and choose the right? No doubt it's well understood
by deep men. My mind turns in and feeds on itself, William, because there's
nothing left outside to feed on."
"You must come back to your appointed task. You must keep doing
good things. You must do more and think less."
"I'm going up to Huntingdon with Auna this afternoon."
"And let her talk to you. Don't think her words are worthless. You've got
a nice bit of your wife left in Auna. Always remember that."
"I do. I shall live on for Auna. There's one beautiful thing left for me—
beautiful, and yet a living wound, that grows painfuller every day I live.
And that's Auna—Auna growing more and more and more like Margery—
bringing her back, even to the toss of her head and the twinkle of her eye.
She laughs like her mother, William; she cries like her mother; she thinks
like her mother. So my only good will be my first grief. The things still left
to care about will torture me more than all the hate of the world can torture
me. They'll keep memory awake—stinging, burning, till I scream to Auna
to get out of my sight presently, and leave me with the foxes and the carrion
crows."
During the later part of this day he ascended the moors with Auna and
walked to the empty Warren House. They talked of those who had dwelt
there, for that morning a letter had come from Mrs. Veale for Margery,
giving her news of the Veale family—Benny and the children.
"You must answer it, Auna, and tell the woman that your mother passed
away last winter," said Jacob. "If I was a younger man, I might go out to
Canada myself and take you with me; but we'll stop here. You'll like
Huntingdon, won't you?"
"Yes, father."
"All the things she specially cared about you'll have round you, father."
"I know them all," he answered, "because, so long as I felt hope that she
might come back, I was specially careful for them and set them aside out of
harm's way. She had a great liking for little things that she coupled with the
thoughts of friends."
He spoke the truth, for many trifles that had sustained some faint
fragrance of hope while Margery lived—trifles that her heart had valued
and her hands had held—were now subject to a different reverence, set
apart and sanctified for ever.
"We might take a few of her favourite flowers too," suggested Auna,
"but I doubt they would live up there in winter. You can always come down
and see them at the right time, father."
"Everything shall be just as you will, Auna. You'll be mistress and I'll be
man."
She laughed and they tramped forward. Jacob could now walk all day
without suffering for it, but he was lame and his pace slower than of old.
He brought the key with him and opened the silent house. A week rarely
passed without a visit, and Jacob always awoke to animation and interest
when he came. The melancholy spot and mean chambers, though they had
chilled not a few human hearts in the past, always cheered him. To a
dwelling whence others had thankfully departed for the last time, he now
looked forward with satisfaction; and Auna, seeing that only here came any
peace to her father, welcomed Huntingdon already as her future home. Not
a shadow clouded her eyes as she regarded it, and not one regret before the
receding vision of Red House and her own life therein. For her father was
her world, as he had always been, and when he turned against his home, she
echoed him and loved Red House no more. She knew that for Jacob the
death of her mother had destroyed Red House; she understood that he
desired to begin again and she felt well content to begin again with him. His
influence had come between her and normal development in certain
directions. She was old for her age, but also young. No instinct of sex had
intruded upon her life, and little interest in any being outside her own home
circle. Even within it her sister and brothers were nothing compared to her
father, and impulses, fears, suspicions that might have chilled a girl's
forward glance under the walls of forlorn Huntingdon, never rose in Auna's
mind to darken the future. Her father willed there to dwell and her welfare
and happiness as yet took no flight beyond him.
"I'll have this room," he said, "because the sun sets upon it; and you will
bide here, Auna, because it's fitting the sun shall rise where you wake."
"My sun set, when mother died," continued Jacob. "What's left is
twilight; but you'll be the evening star, Auna, as it says in mother's little
book. You can read it if you want to. I'll let it touch no other hand but yours.
I've read every word many times, because I know her eyes rested on every
word once."
The desolation of the warren house soothed Jacob, and having wandered
through it he sat for a time outside the enclosures before starting to return
home. He rolled his melancholy eyes over the great spaces to a free horizon
of the hills folding in upon each other.
"I hope it will, father," she answered, "but the days will be very like
each other."
"Days too like each other drag," he told her. "We must change the
pattern of the days. It shan't be all work for you. We'll do no work
sometimes, and now and then you'll go for a holiday down to the 'in
country,' and I shall be alone till you come back."
"I'm never going to leave you alone," she said. "If you think upon a
holiday for me, you've got to come too, or have Peter up here for a bit."
"There's only one other thing beside the moor that's good to me; and
that's the sea; and you well love to be on the sea, so we might go to it now
and again."
"To know the sea better may be a wise deed for me," he said. "Some it
hurts and cannot comfort—so I've heard. Not that it could ever be a friend
to me, like the hills."
"You'd love it better and better, specially if you'd sail out on to it, same
as I did with Uncle Lawrence."
Her father nodded and this allusion did not banish his placid mood. The
sun rays were growing slant and rich as they set out for home. Auna
laughed at their shadows flung hugely before them. Then they descended
and she walked silently for a long way with her hand in her father's hand.
But she was content despite their silence, for she knew that his mind had
passed into a little peace. She often wondered why the desert solitudes
cheered him, for they cast her down. She liked to leave it behind her—that
great, lonely thing—and descend into the kindly arms of the Red House
trees and the welcome of the river. For the river itself, in Auna's ear, sang a
different song beside her home, than aloft, in its white nakedness, and
loneliness. There it was elfin and cold and silvery, but it did not seem to
sing for her; while beneath, at the feet of the pines, under the bridge of logs,
in the pools and stickles she knew to the last mossy boulder—there her
name river had music for her alone and she understood it. It was a dear
friend who would never pass away out of her life, or die and leave her to
mourn. A time was coming when she would know it better still, see it aloft
nigh its cradle, learn its other voices, that yet were strange to her. In the
valley the river was old and wise; perhaps aloft, where it ran nigh
Huntingdon, it was not so wise or tender, but younger and more joyous.
"It'll have to be my friend," thought Auna, "for there won't be no others
up there but father."
An incident clouded the return journey, and though neither Jacob nor his
daughter was sentimental, death confronted them and made them sorry. An
old goat, one of the parents of the Red House flock, had disappeared during
the previous winter, and they had fancied that he must have fallen into the
stream and been swept away in a freshet that happened when he vanished.
But now, in a little green hollow rimmed with heath and granite, they found
all that was left of the creature—wisps of iron-grey hair, horns attached to
his skull, a few scattered bones picked clean by the carrion crows and the
hollow skeleton of his ribs with young grasses sprouting through it.
"So it is then. And I'm glad we found him. A very dignified thing, the
way the creatures, when they know they're going to die, leave their friends
and go away all alone. A fine thing in them; and there's many humans
would do the same if they had the strength I dare say."
"Peter will like to have them for a decoration," she said. "I hope he
didn't suffer much, poor old dear."
"And I hope the carrion crows didn't dare to touch him till he was gone,
father."
"No, no. There's unwritten laws among the wild things. I expect they
waited."
"We don't know. They can't tell us. Perhaps they wondered a bit. More
likely they knew he'd gone up to die and wouldn't come back. They know
deeper than we think they know among themselves, Auna."
"I've often been sorry for that poor Scape-goat in the Bible, father. I
read about him to grandmother long ago, one Sunday, and never forgot
him."
"I won't hear you say things like that, father. I won't live with you if you
say things like that."
"Bear with me, bear with me. It comes in great waves, and I'm a
drowning man till they roll over and pass. You'll sweeten me presently. Who
could live with you and not grow sweeter, you innocent?"
He broke off.
Venus throbbed upon the golden green of the west, and as they
descended, the valley was already draped with a thin veil of mist under
which the river purred. From the kennels came yapping of the dogs; and
when they reached home and entered the yard, half a dozen red terriers
leapt round Auna and nosed with excitement at "Beardy's" horns.
CHAPTER V
On a rough day of autumn, when the river ran high and leaves already
flew upon half a gale of wind, a little crowd of men gathered up the valley
beyond Red House, and with crow-bars and picks sought to lift up the block
of granite whereon aforetime Margery Bullstone so often sat. Jacob had
long ago dug down to the foundation, that he might satisfy himself to its
size; and it had proved too great beneath the soil, where twice the bulk of
the visible part was bedded. Now, therefore, having heaved it from the
ground, they were busy to drive four holes in it, where the cleft must take
place. Then they inserted four cartridges, set the slow match, lighted it and
retreated beside a cart that already stood out of harm's reach.
There had come Peter and Auna, Adam and Samuel Winter and Jacob
Bullstone; and Adam had lent his pig-cart to convey the stone to the
churchyard.
The block had split true and a mass accordant with its memorial purpose
was presently started upon the way. Jacob directed great care, and helped to
lift the stone, that none of the native moss in its scooped crown should be
injured.
"Whether it will live down in the churchyard air I don't know," he said,
"but the grave lies in shade most times and we can water it."
They went slowly away under the rioting wind, and near Red House
Peter and his sister left them, while at Shipley Bridge Samuel also returned
home.
Jacob walked beside Adam at the horse's head. It was a bad day with
him and the passion of the weather had found an echo in his spirit. The rain
began to fall and Winter drew a sack from the cart and swung it over his
shoulders.
"You'd best to run into Billy Marydrew's till the scat's passed, else you'll
get wet," he said.
"A pity it isn't my coffin instead of her stone you've got here," he said.
"I'm very wishful to creep beside her. No harm in that—eh?"
"There's every harm in wishing to be dead afore your time, Jacob; but
none I reckon in sharing her grave when the day's work is ended."
"Truth's truth and time can't hide truth, whatever else it hides. I killed
her, Adam, I killed her as stone-dead as if I'd taken down my gun and shot
her."
"No, no, Bullstone, you mustn't say anything like that. You well know
it's wrong. In one way we all help to kill our fellow-creatures I reckon; and
they help to kill us. 'Tis a mystery of nature. We wear away at each other,
like the stone on the sea-shore; we be thrown to grind and drive at each
other, not for evil intent, but because we can't help it. We don't know what
we're doing, or who we're hurting half our time—no more than frightened
sheep jumping on each other's backs, for fear of the dog behind them."
"That's all wind in the trees to me. I wasn't blind: I knew what I was
doing. I don't forget how I hurt you neither, and took good years off your
life."
"Leave it—leave it and work. Think twice before you give up work and
go to Huntingdon."
"My work's done, and badly done. Don't you tell me not to get away to
peace if I'm to live."
"Peace, for the likes of us, without learning, only offers through work."
They had reached Marydrew's and Adam made the other go in.
"I'll stop under the lew of the hedge till this storm's over," he said. "Tell
Billy I'd like to see him to-night if he can drop in. The wind's turning a
thought north and will go down with the sun no doubt."
He went forward, where a deep bank broke the weather, and Jacob
entered William's cottage. Mr. Marydrew had seen them from the window
and now came to the door.
"A proper tantara 'tis blowing to-day," he said. "My loose slates be
chattering, like a woman's tongue, and I'm feared of my life they'll be
blowed off. The stone's started then? That's good."
Jacob, according to his habit, pursued his own thoughts and spoke on, as
though Adam still stood beside him.
"To talk of peace—to say there's any peace for a red-handed man. Peace
is the reward of work and good living and faithful service. Red hands can't
earn peace."
"Now don't you begin that noise. Let the wind blow if it must. No call
for you to blow. Take my tarpaulin coat for the journey. A thought small,
but it will keep your niddick dry."
Mr. Marydrew brought his spirit from a cupboard while the other
rambled on.
"We've just hacked the stone for her grave out of the earth. Torn up by
the roots, like she was herself. She dies and her children lose a father as
well as a mother, because they know the stroke was mine; and what honest
child shall love a father that killed a mother? That's not all. Think of that
man now helping me to get the stone to her grave. Think of the suffering
poured on Winter's head. A very good, steadfast sort of man—and yet my
hand robbed him of much he can never have again. Three out of four
children lost, and that saint underground. And all allowed by the good-will
of a watchful God."
He nodded, emptied the glass his friend offered him and looked out at
the rain.
"You're dark to-day and don't see very clear, my dear," said Billy. "You
put this from your own point of view, and so 'tis very ugly I grant; but every
thing that haps has two sides. You've bitched up your show here, Jacob, and
I'm not going to pretend you have not. You've done and you've suffered a
lot, along of your bad judgment; and you was kindiddled into this affair by
the powers of darkness. But 'tis the way of God to use men as signposts for
their fellow-men. He sees the end of the road from the beginning, and He
knows that the next scene of your life, when you meet Margery, will belike
be full of joy and gladness."
"It's your heart, not your head, that speaks that trash, William,"
answered the younger. "Can future joy and gladness undo the past? Can the
sunshine bring to life what the lightning killed an hour afore? How shall
understanding in Heaven blot out the happenings on earth? Things—awful
things—that God's self can't undo? And answer me this: if some live happy
in this world and go happy to the next, as well we know some do; then why
should not all? If some are born to live with their minds clear, their tempers
pure, their passions under control, why should such as I am blot the earth?
Would a man make maimed things? Would a decent man bring living
creatures to the birth short of legs or eyes, when he could fashion them
perfect? Where's the boasted mercy of your God, William? Where's His
eternal plan, and what's the sense of talking about a happy eternity if a man
comes to it poisoned by time? I'm calm, you see—a reasoning creature and
honest with myself. My everlasting inheritance would be nothing but one
undying shame and torture at the ruin I have made; and I know that I cannot
stand up in the next world among those I have spoiled and wronged and feel
a right to do so. And if my Creator has built me to gnaw my heart out in
agony through a life without end—what is He? No, the only poor mercy left
for me is eternal night—endless sleep is what I'd pray for if I could pray;
because another life must be hell wherever it is spent. Let Him that made us
unmake us. 'Tis the least and best that He can do for nine men out of ten."
The storm had swept past and a weather gleam flashed upon the rain.
The red beech trees before William's home shone fiery through the falling
drops and shook off little, flying flakes of flame, as the leaves whirled in the
wind.
Mr. Marydrew did not answer, but followed Jacob to the wicket gate
and watched him as he rejoined Winter. William waited until the cart had
disappeared and was turning to go in, when a neighbour came up the
shining road from Shipley.
"Did Adam tell you he's wishful to see you to-night?" she asked and
Billy answered that he had not.
"Well he is," she said, and put down the big umbrella under which she
had come. "He's lending a hand with a heathen lump of stone just now. That
forgotten man up the valley be going to put it on poor Margery Bullstone's
grave; and for my part I'm a good deal surprised that parson will suffer such
a thing in a Christian burial ground."
"They've just gone round the corner—Adam and him and the cart. He
was in here storming against his fate a minute agone."
"I live with Adam Winter," she answered and went her way.
CHAPTER VI
THE CHILDREN
"There's nothing so cold as the chill of your own flesh," he said. "A
child's a fearful thing, Adam, if it turns against a parent, especially when
you've kept your share of the bargain, as I have."
"Yes, thoughtful for themselves. Young and green they are, yet not too
young to do man and woman's work, not too young to know the value of
money. Something's left out of them, and that is the natural feeling there
should be for their father. Hard, hard and ownself they are."
"Your eldest is born to command, and that sort play for their own hand
by reason of the force that's in 'em. Time will mellow John Henry's heart,
and experience of men will show him the manner of man his father is."
"He loved his mother more than he loved anything, and it may be out of
reason to ask them, who loved her, to spare much regard for me. That I
grant and have always granted. Yet I've striven to show him now, with all
my awful faults, I'm a good father."
"John Henry comes of age in a minute and I've made over Bullstone
Farm to him. A great position for one so young—eh, Winter?"
"A wondrous fine thing, and what makes it finer is that he's a born
farmer and will be worthy of it."
"Kingwell's lease is up ere long, and then my son will reign and be the
head of the family in the eye of the nation."
"You mustn't say that. You're the head of the family, not your son."
"He had scarce a word to answer when I told him how I'd been to
Lawyer Dawes and turned it over. As for Dawes himself, he feels a thought
doubtful whether I should part with my own so freely; but 'no,' I said, 'I
understand what I'm doing.' A bit of bread and a cup of water is all I shall
ever ask from my children. Let them do what I've failed to do and carry on
the name in a proper way. I want to be forgot, Adam; and yet, because
they're quite agreeable to take all and let me be forgot, I smart. Such is
man."
"They care not for my good—why should they? They don't want my
wisdom, for well they know my wisdom is foolishness. Who'd seek me
now? Who'd listen to me now, but a few such as you and William, who
have the patience of those who grow old and can still forgive all and laugh
kindly? No: they are children, and wisdom they need and experience they
lack—the more so because the world has run smooth for them. But they
don't look to me and they never did. All but Auna were set against me from
their short coats. They began to doubt as soon as they could walk. Their
grandmother was their god, and they'll live to find she was a false god.
They didn't get their hard hearts from Margery, or me."
"Trust to that then," urged the other. "Be patient and wait and watch,
and you'll see yourself in them yet, and your wife also."
"You have a great trust in your fellow-creatures, Adam Winter."
"You must trust 'em if you're going to get any peace. What's life worth if
you can't trust? 'Tis to people the world with enemies and make yourself a
hunted creature."
"'Hunted' is a very good word," answered Jacob, "that's the state of most
of us. As to my children," he continued, "Peter will carry on here with
Middleweek, and he's very well able to do it—better already at a bargain
than ever I was, and likely to be more popular with customers than I. But
my sons have got to make me payments. That's fair—eh?"
"Certainly it is."
"And Auna must be thought upon also. She's first in my mind, and
always will be, and she needn't fear, when I go, that she'll be forgot. I've
managed pretty cleverly for her, well knowing that she'd not think of such
things when she grows up."
"Don't you force her to grow up too quick, however," urged Adam.
"Such a far-seeing man as you must not come between her and her own
generation, and keep her too close pent if you really go to the moor. Youth
cleaves to youth, Jacob; youth be the natural food of youth."
Adam argued against this opinion and indeed blamed Bullstone heartily.
John Henry drove his sister in a little market cart from Bullstone Farm
and they surprised their father walking by the river. Auna accompanied him
and they were exercising some puppies. He had just pointed out to the flat
rock by the river where Margery was wont to sit, when she took vanished
generations of puppies for their rambles; then Auna cried out and the cart
stopped beside them.
John Henry alighted to shake hands with his father and Avis descended
and kissed him. He was astonished and asked the meaning of their visit.
"We're not playing about," answered John Henry, "we've come on a very
important, family matter—our affair and not grandmother's at all. And we
thought we might stop for dinner and tea."
"Come and welcome; but I've done all I'm going to do, John Henry—all
for you and all for Avis. You're not going to squeeze me any more."
"Leave it till after dinner," directed the young man. "I heard you were
fixed beyond power of changing on Huntingdon; but I do hope that's not so,
father; because I think there's a good few reasons against."
"I don't see no use in that copse up the valley," he said. "'Tis good
ground wasted—only a place for badgers to breed, and we don't want them
killing the poultry. But if it was cleared to the dry-built wall—cleared
slowly and gradual in winter—it would give a bit of work and some useful
wood, and then offer three good acres for potatoes and rotation after. It's
well drained by nature and worth fifty pounds a year presently if not more."
Jacob was in an abstracted mood and the sight of all his children met
together gave him pain rather than pleasure. They accentuated the empty
place and their spirits jarred upon him, for they were cheerful and noisy. He
thought that Auna was the brighter for their coming and resented it in a dim,
subconscious fashion.
"Light your pipe and listen, father. You must wake up and listen. I've
got a very big idea and I'm very wishful you'll think of it, and so is Avis."
"What big idea could you have that I come into?" he asked.
"Who's put you up to thinking about me at all? You weren't used to."
"God's my judge nobody put me up to it; did they, Avis?"
"Nobody," answered Avis. "It was your own thought, and you asked me,
and I said it was a very fine thought."
"No, father. It's just this. I know you don't want to stop here. That's
natural. But there's other places beside the moor. And I'm very wishful
indeed for you to come and live with me at Bullstone—you and Auna. Then
you'd be near Peter, and Avis too; and she could come and go and look after
you."
Jacob took it ill. He believed that selfish motives had prompted John
Henry, nor did he even give him credit for mixed motives. Then, as he
remained silent, another aspect of the proposal troubled him. This woke
actual anger.
"To 'look after me'? To 'look after me'? God's light! what do you take
me for? D'you think my wits are gone and my children must look after me?
Perhaps you'd like to shut me up altogether, now you've got your farms?"
They did not speak and he took their silence for guilt, whereas it only
meant their astonishment.
"Where the hell did you scheming devils come from?" he shouted.
"Where's your mother in you? Are you all your blasted grandmother?"
Avis flushed and John Henry's face also grew hot. Auna put her arms
round her father's neck.
"Don't, don't say such awful things," she begged him; "you know better,
dear father."
"You wrong us badly when you say that, father. We meant no such thing
and was only thinking of you and Auna. You must have stuff to fill your
mind. You're not a very old man yet, and you're strong and active. And I