PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter

National Security Secrecy Comparative
Effects On Democracy And The Rule Of

Law Sudha Setty
Visit to download the full and correct content document:
https://textbookfull.com/product/national-security-secrecy-comparative-effects-on-dem
ocracy-and-the-rule-of-law-sudha-setty/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
National Constitutions in European and Global

Governance Democracy Rights the Rule of Law National
Reports Anneli Albi
https://textbookfull.com/product/national-constitutions-in-
european-and-global-governance-democracy-rights-the-rule-of-law-
national-reports-anneli-albi/
Free market criminal justice : how democracy and

laissez faire undermine the rule of law 1st Edition
Brown
https://textbookfull.com/product/free-market-criminal-justice-
how-democracy-and-laissez-faire-undermine-the-rule-of-law-1st-
edition-brown/
In The Name Of Security Secrecy Surveillance And

Journalism Johan Lidberg
https://textbookfull.com/product/in-the-name-of-security-secrecy-
surveillance-and-journalism-johan-lidberg/
Rule of Law Human Rights and Judicial Control of Power

Some Reflections from National and International Law
1st Edition Rainer Arnold
https://textbookfull.com/product/rule-of-law-human-rights-and-
judicial-control-of-power-some-reflections-from-national-and-
international-law-1st-edition-rainer-arnold/
Law s Wars The Fate Of The Rule Of Law In The US War On
Terror Richard L. Abel
https://textbookfull.com/product/law-s-wars-the-fate-of-the-rule-
of-law-in-the-us-war-on-terror-richard-l-abel/
A Life in law and activism 1st Edition Sudha Bharadwaj
https://textbookfull.com/product/a-life-in-law-and-activism-1st-
edition-sudha-bharadwaj/
Rule of Law and Fundamental Rights: Critical

Comparative Analysis of Constitutional Review in the
United States, Germany and Mexico 1st Edition Alfredo
Narváez Medécigo (Auth.)
https://textbookfull.com/product/rule-of-law-and-fundamental-
rights-critical-comparative-analysis-of-constitutional-review-in-
the-united-states-germany-and-mexico-1st-edition-alfredo-narvaez-
medecigo-auth/
Resisting Education A Cross National Study on Systems

and School Effects Jannick Demanet
https://textbookfull.com/product/resisting-education-a-cross-
national-study-on-systems-and-school-effects-jannick-demanet/
The Law of Emergency Powers: Comparative Common Law

Perspectives Abhishek Singhvi
https://textbookfull.com/product/the-law-of-emergency-powers-
comparative-common-law-perspectives-abhishek-singhvi/
“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
Downloaded from https://www.cambridge.org/core. University of Texas Libraries, on 20 Jan 2020 at 13:55:37, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781316440674
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.
ASCL STUDIES IN COMPARATIVE LAW
ASCL Studies in Comparative Law is designed to broaden theoretical and practical

knowledge of the world’s many legal systems. With more than sixty years’ experience,
the American Society of Comparative Law has been a leader in the study and analysis of
comparative law. By promoting the investigation of legal problems in a comparative
light, whether theoretical or empirical, as essential to the advancement of legal science,
the ASCL provides an essential service to legal practitioners and those seeking reform of
the law. This book series will extend these aims to the publication of monographs and
comparative studies of specific legal problems.
The series has two general editors. Mortimer Sellers is Regents Professor of the University
System of Maryland and Director of the Baltimore Center for International and
Comparative Law. He is an Associate Member of the International Academy of
Comparative Law. Vivian Curran is Distinguished Professor of Law at the University
of Pittsburgh School of Law.
National Security Secrecy
comparative effects on democracy and the
rule of law
SUDHA SETTY
Western New England University School of Law
University Printing House, Cambridge c b2 8b s , United Kingdom
One Liberty Plaza, 20th Floor, New York, ny 10006, USA
477 Williamstown Road, Port Melbourne, vi c 3207, Australia
4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India
79 Anson Road, #06–04/06, Singapore 079906
Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781107130623
d oi : 10.1017/9781316440674
© Sudha Setty 2017
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2017
Printed in the United States of America by Sheridan Books, Inc.
A catalogue record for this publication is available from the British Library.
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
LC record available at https://lccn.loc.gov/2016056474
i sb n 978-1-107-13062-3 Hardback
i sb n 978-1-107-57647-6 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
For Matthew
Downloaded from https://www.cambridge.org/core. University of Newcastle Library, on 12 Feb 2020 at 17:10:39, subject to the Cambridge Core
Contents
Acknowledgments page x
Introduction 1
part i the infrastructure of secrecy in the united

states 17
1 Executive Branch Secrecy 19
2 Congressional Complicity 37
3 An Overly Deferential Judiciary 53
part ii comparative perspectives on transparency 73
4 International and Supranational Norms 75
5 The United Kingdom 87
6 India 104
part iii societal tolerance for national security

secrecy 119
7 Public Fear and Resilience 121
8 Individual Privacy and Secrecy: A Matter of Contract or a Human

Right? 134
Conclusion 150
Notes 154
Index 229
ix
Downloaded from https://www.cambridge.org/core. Queen Mary, University of London, on 07 Jan 2020 at 09:33:05, subject to the Cambridge
Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781316440674
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
Acknowledgments xi
h arv . na t ’ l s e c u r it y j . 185 (2012); The Rise of National Security Secrets, 44

c o nn . l . r e v . 1563 (2012); Judicial Formalism and the State Secrets Privilege, 38
w m. mi t c h e ll l . r e v . 1629 (2012); No Place for Secrets: Balancing National
Security Interests and the Need for Transparency of the Law, 29 l ’ ob s e r v at e u r
d e s n at i on s u ni e s 1 51 (2010–12); Litigating Secrets: Comparative Perspectives on
the State Secrets Privilege, 75 br oo kl . l . re v . 201 (2009); and No More Secret
Laws: How Transparency of Executive Branch Legal Policy Doesn’t Let the Terrorists
Win, 57 kan s . l . re v . 579 (2009).
Many friends, colleagues in the legal academy, and family members encouraged
my writing over the last several years and through the process of bringing this book to
fruition, whether my attitude reflected Audre Lorde (“what we have to do must be
done in the now”), Notorious B.I.G. (“if you don’t know, now you know”), Samuel
Beckett (“I can’t go on. I’ll go on”), or the Dalai Lama (“Sleep is the best medita-
tion”). Many thanks to those who offered thoughtful insight on aspects of this book
or gave feedback on chapters: Allison Christians, Surabhi Chopra, Angie Chuang,
Anthony Cullen, Federico Fabbrini, Mark Janis, Molly Land, Peter Lindseth, the
late Robert Prasch, Kent Roach, Kim Lane Scheppele, and Falguni A. Sheth.
Undoubtedly this is an incomplete list, but for their encouragement and support,
I also thank Pratibha Kanive Agarwal, Vikram Agarwal, Sahar Aziz, Aziza Ahmed,
Julie Alleyne, Jacqueline Charity, Theodore Charity, Robert Chesney, Meera Deo,
Maureen Duffy, Rashmi Dyal-Chand, Robert Ferguson, Luz Herrera, Anil Kalhan,
Kirtee Kapoor, Ramzi Kassem, Carol Liebman, David Mednicoff, Joya Misra,
Fernanda Nicola, Elisa Niño-Sears, Aziz Rana, Ganesh Rao, Shalini Rao, Pravina
Setty, Sanjay Setty, Sriharsha Setty, Rupal Shah Palanki, Madhuri Shamanna,
Shirin Sinnar, Shoba Sivaprasad Wadhia, and Adrien K. Wing.
I offer deep gratitude to family members who persevered through every stage of
this project. My parents, Saroja and Narayana Setty, offered essential support in
many ways. My children, Mohan and Mira, were and are patient, generous,
encouraging, and wise beyond their years.
I dedicate this book to Matthew, for reasons that would fill a separate book and yet
for which there are no words.
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
Downloaded from https://www.cambridge.org/core. University of Florida,1 on 15 Nov 2017 at 12:59:39, subject to the Cambridge Core terms
of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781316440674.001
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
Downloaded from https://www.cambridge.org/core. University of Florida, on 15 Nov 2017 at 12:59:39, subject to the Cambridge Core terms
Introduction 3
legal interpretation remains secret, although the Snowden disclosures prompted

partial publication of the legal authority to conduct other warrantless surveillance.
Prior to the Snowden disclosures, members of several House and Senate committees
had some access to the NSA and the opportunity to learn about the parameters of the
NSA’s metadata program, but were not allowed to discuss the program publicly.
The Foreign Intelligence Surveillance Court, at that point a non-adversarial court
with secret proceedings, approved the implementation of the NSA metadata pro-
gram after demanding some modifications. Those court opinions were kept secret
until public pressure stemming from the Snowden disclosures prompted their
disclosure. The program itself was kept largely secret from the public, but the
maintenance of the program as this kind of “unknown unknown” was only made
possible by the fact that the mechanics of governance and oversight – as such – were
themselves kept secret.
After the Snowden disclosures, all branches of government moved in the opposite
direction – of demanding accountability over the NSA. Yet the government actions
and the prolonged public discussion of privacy and security following the Snowden
disclosures, and the NSA reforms enacted in 2015, were triggered not by an effective
accountability mechanism that was already in place; to the contrary, society
depended on the illegal and allegedly criminal leaks of a contractor to understand
more fully what type of surveillance has been taking place and to have a real
discussion as to whether that surveillance comports with societal priorities and
values. Only after the Snowden disclosures began did plaintiffs alleging unconstitu-
tional surveillance have standing to have their cases heard in court. Because the
secrecy over the NSA programs had broken down, these plaintiffs were in
a significantly better position than individuals subjected to extraordinary rendition
and torture on U.S. orders, or those put on the U.S. government’s list of suspected
terrorists who may be subjected to targeted killing. Those individuals – some of
whom have suffered tremendous human and civil rights abuses – have been unable
to bring cases against the government because of the secrecy that still surrounds
those programs. This is illustrative of a system in which secrecy is valued too highly,
resulting in unchecked abuse and government overreaching in ways that have not
been shown to be necessary to maintain national security, yet are undercutting
U.S. claims of adherence to the rule of law.
**
The basic premise of a democracy is that the power to decide what the government
does resides with the people; the government’s actions are limited by the parameters
set by the constituents, and the people understand what the government is doing to
govern. A corollary principle is that in liberal democratic societies such as the
United States, the United Kingdom, and India, people have chosen a structure of
government that affords equal protection of the law, and values privacy and the right
to live a largely private life. These conceptions of the rule of law demand that the
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
Introduction 5
conducted inverts the democratic structure of transparency in ways that undermine

the effectiveness of our governmental structures and lessen our commitment to
a society based on the rule of law.
Why have we allowed these two enormous shifts? The most basic justification is
fear, specifically fear of another terrorist attack after 9/11.5 This has motivated a shift
in substantive laws and policies away from a largely crime-based model in which
terrorist acts are – for the most part – investigated after the fact and dealt with as most
other serious and violent crimes, like murder or sexual assault. Instead, the
post–September 11 focus of law and policy has been to move national security
investigations toward a preventive model that is predicated on zero tolerance for
terrorism. This shift is predicated on a type of national security exceptionalism: with
other violent crimes, there can be no serious suggestion that the law ought to move
in the way that national security law moved. As a society, we do not believe that
a murder rate of zero in the entire United States is the only acceptable outcome.6
Instead, with crimes such as murder, we try to create a balance:7 we have laws and
a structure in place that will and prosecute murders in ways that attempt to punish
offenders, promote justice, and deter those acts in the future. Based on history,
education, and experience, we hope that these steps keep the murder rate down, but
we don’t craft our laws and policies to suggest that one murder in a city per year
means that the law has failed.
Yet that is precisely what we do when it comes to terrorism. With a societal and
political zero-tolerance for terrorism in the post–9/11 context, the Bush, Obama, and
Trump administrations have pushed the boundaries of national security exception-
alism in separate ways to suggest that a different set of laws and rules apply to
government counterterrorism efforts, and that the public does not have a right to
know what those laws are. Congress, for its part, allocated vague but expansive
powers to the government immediately after September 11; until mid-2015, there
was little legislative success in curtailing these powers.8 Courts have generally reified
and justified this national security exceptionalism by allowing executive branch
policies to go unchecked for many years, except in the most egregious of
circumstances.9 At the same time that these vague and expansive powers have
been allocated to or simply asserted by successive presidential administrations, the
high pressure put on intelligence agencies to find terrorists before they strike or even
make significant headway in their planning has not abated.10 Finally, administra-
tions have defined terrorism and related crimes broadly to encompass all kinds of
activity, such that making a donation to a charitable organization can result in
a terrorism-related conviction.11
The same zero-tolerance posture stemming from the fear of another attack has
also justified the layers of secrecy surrounding national security laws and policies.
Certainly national security secrets are often genuinely necessary to maintain the
integrity of a particular program or policy, gain a tactical advantage, or simply
protect the individuals involved in running a program.12 I do not argue that open
government principles ought to be applied at their strongest in the national security

context; however, we ought to ask harder questions as to whether national security
secrecy as it has manifested in our post–September 11 political and legal culture is
necessary and appropriate, or whether aspects of that secrecy have been so corrosive
that they need to be substantially curtailed by improving institutional incentives and
structural constraints.
types of national security secrets

Our starting point is understanding that there are numerous national security secrets
that have been kept by the post–September 11 presidential administrations. Further,
if we understand that the basic definition of a law is a rule that sets parameters for
behavior of the government or businesses or private individuals, then many of the
policies and interpretations that authorize and limit counterterrorism activities and
national security programs should be thought of as secret laws. Donald Rumsfeld’s
views on “known knowns,” “known unknowns,” and “unknown unknowns”13 pro-
vided a means by which to consider, categorize, and assess national security secrets.
David Pozen uses Secretary Rumsfeld’s framework in considering the possibility
of a spectrum between deep and shallow government secrets,14 which, given the
nature of national security policy-making, would be held by the executive branch.
Deep secrets, which would include Rumsfeld’s “unknown unknowns,” might
encompass counterterrorism activities such as the waterboarding of detainees by
the U.S. government. The existence of a waterboarding protocol was kept secret
from the public and other branches of government and, in fact, actively denied by
the Bush administration until information about the protocol was leaked to the
public. Once its existence became known, it became a shallow secret or a “known
unknown” – a program about which the existence is known to the public, but about
which much remained secret. As more information about U.S. waterboarding of
detainees continued to be made public, even over a decade after the waterboarding
commenced,15 the whole program became a shallower secret.16
There are many secrets that start out and continue as shallow secrets in national
security and counterterrorism work. Examples include specific military or coun-
terterrorism strategies; we know that law enforcement and intelligence services
personnel use in-person surveillance to investigate domestic terrorist groups,
but we often don’t know the specific targets of that surveillance or particular
methodologies of surveillance. This shallow secrecy is sometimes rightfully justi-
fied from a utilitarian perspective by the idea that the programs’ effectiveness is
predicated on some level of secrecy, without which the targets of investigation
would simply outmaneuver the government.17
So, at least in some instances, shallow secrets are validly held and are often
accompanied by adequate oversight and accountability mechanisms that help
ameliorate the antidemocratic concerns of operating in secret. Deep secrets, on
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
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
Introduction 9
Declaration of Human Rights,26 the Geneva Conventions,27 the International

Covenant on Civil and Political Rights,28 the American Convention on Human
Rights,29 and the Convention Against Torture.30 On the domestic level, the Fifth,
Eighth and Fourteenth Amendments to the U.S. Constitution have been inter-
preted as prohibiting torture,31 and various domestic laws codify the obligations in
the Convention Against Torture: the federal Torture Statute,32 the Torture Victim
Protection Act of 1991,33 the Alien Tort Claims Act,34 and the Foreign Affairs
Reform and Restructuring Act of 1998.35 Yet President Bush’s famous (or infa-
mous) statement that “we don’t torture”36 would perhaps more appropriately
be read as “we don’t torture*” to reflect the Bush administration’s temporary
redefinition of “torture” as a narrow set of activities 37 that did not comport with
the commonly understood international or domestic legal understandings of the
term.38
Similarly, DNI Clapper’s response of “no” to the query as to whether the NSA
“collect[s] any type of data at all on millions or hundreds of millions of
Americans” is better understood as a “no*” because Clapper and the NSA used
a 1982 Defense Department regulation to define the word “collect” to mean the
point at which searches – which are most certainly run through the database of
information held by the NSA on hundreds of millions of Americans through its
metadata program – provide results, and those results are analyzed by a person.39
Leveraging this definition, Clapper offered the post hoc justification that “collec-
tion” does not occur at the point at which the data is gathered or even when
algorithms are used to sort the data for relevance, even though a plain reading
would suggest that the Defense Department regulation could be interpreted
such that “collection” occurred at a number of points earlier in the NSA’s data
gathering and sorting process, since humans were actively querying the database
of information.
When later pressed about his statement after the Snowden disclosures, Clapper
stated that he understood that there were semantic differences in understanding
what “collect” might mean under particular circumstances, and that, based on
his understanding of the 1982 Defense Department regulatory definition, he had
actually been honest in responding to Senator Wyden’s question.40
These two examples offer slightly different but related understandings of how
national security secrecy might exacerbate the problems of redefining words in
unconventional ways. In the first example, the Bush administration’s unconven-
tional and later retracted definition of torture is kept secret from the public.
The public attitude of the administration is one of substantive compliance with
previously understood legal norms (i.e., “we don’t torture”), but the law that
actually governs the administration’s decision making is substantively different
and extreme in the way it defines torture, and is kept from the public. In this
respect, the Bush administration’s policy on detainee treatment and abuse is part
of a body of secret national security law that congressional oversight and public
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.
Introduction 11
harms caused by overreliance on national

security secrecy
Such secrecy causes immediate and recognizable harms to liberty, equality, and
democracy. First, the effectiveness of both ex ante and ex post oversight and account-
ability measures diminishes greatly when secrecy is given primacy over the rule of
law. In those cases, we lose the ability to hold the government to account when it
tortures; abuses detainees; harasses certain racial, ethnic, or religious communities;
disallows individuals from traveling on planes; or targets them for extrajudicial
killing. These systematic violations of human and civil rights occurring in the
years since September 11 are most certainly facilitated by the lack of transparency
of the laws and policies that enable and constrain those government employees
tasked with counterterrorism work. In all of these contexts, national security secrecy
has prevented accountability altogether or delayed it for years. Further, this lack of
accountability for abuses of power has been felt disparately by Muslims, those of
Arab and South Asian descent, or anyone who is perceived to fall into one or more of
those categories, regardless of citizenship,43 and secrecy has compounded the
inability to seek meaningful redress for these harms.
Some have argued that the disparate impact on these populations is simply
a natural effect of who the current potential terrorists likely are, but the last fifteen
years have made clear that this is largely a hollow justification. For the most part, we
would not and do not tolerate the types of abuses that have occurred against these
populations if they were to occur against the majority and privileged population.44
The legal and political reaction against perceived domestic and international
security threats throughout U.S. history – the military defeat, relocation, and control
of Native Americans; the authorization and encouragement of the use of arms
against rebellious slaves; the exclusion of Chinese immigrants; the vilification of
Catholic and southern European immigrants; the internment and property theft of
Japanese immigrants and Japanese Americans residing on the West Coast; the
ostracization and persecution of individuals perceived to be sympathetic to
Marxist causes; the investigation, threats, and undermining of African-American
civil rights activists; and now the alienation, abuse, profiling, and suspicion of
Muslims and those perceived to be Muslim45 – gives us the basis of a pattern that
emerges whenever the more privileged majority of the U.S. population and political
classes fears an existential threat. It is the very “otherness” of these populations that
has made political space for their exceptionally bad treatment in the name of
national security.46
Second, inefficiencies and poor judgment flourish in environments in which self-
policing is not encouraged by transparency. The post–September 11 landscape
offers numerous examples of this, with the Justice Department memoranda
justifying the use of torture being one of the most vivid examples that has come to
light. As discussed in Chapter 1, decision-making that occurs when no external
accountability measures are in place tends to be inadequate in terms of efficiency,

accuracy, legal compliance, and respect for human and civil rights. Good govern-
ance requires at least some degree of transparency – national security programs and
initiatives may require shallow secrets, but knowledge of the existence and para-
meters of those programs allows for compliance mechanisms to gauge and evaluate
their legality and efficacy. One of the most frustrating parts of this puzzle is that
secrecy, even when it comes to conventional or non-controversial programs, always
leads to problems in accountability. But when it comes to controversial, exceptional,
possibly illegal programs, the chances of secrecy are higher, and the lack of account-
ability is more pronounced.
Consider the NSA metadata collection (or, as we might call it, “collection”)
program, which is addressed in Chapters 1 through 3. When the Bush administration
first tried to publicly justify its Terrorist Surveillance Program in 2006, it relied first
on constitutional authority that it could do whatever it wants so long as it operates in
good faith that the actions are being taken to further U.S. security interests.47 If that
constitutional argument had prevailed, then there would have been no boundaries
to national security exceptionalism and to secrecy.
The Obama administration was very wary of justifying its more controversial
counterterrorism programs solely under constitutional authority. Instead, it
sought buy-in from Congress, which meant that domestic metadata collection
was conducted under the auspices of Section 215 of the 2001 USA Patriot Act.
The statutory language justifying collection was vague (allowing for the collection
of “all tangible things” when there is a “reasonable, articulable suspicion” that it
may be “relevant” to an ongoing investigation). The Obama administration
exploited this vagueness to create a largely secret program; some members of
Congress were informed of the program and objected to it, but were not allowed
to discuss it publicly. When the administration was asked about the program in
public, it misinformed, suggesting that it did not “collect” the public’s metadata.
Courts refused to touch this issue before it was publicly disclosed starting
in June 2013. Only after Snowden began making disclosures about surveillance
programs did numerous types of accountability mechanisms kick in – administrative,
congressional, and judicial. At that point, President Obama encouraged a scaling
back of the program, some judicial opinions found the metadata collection to be
illegal, and Congress ultimately curtailed some aspects of the administration’s
surveillance power. None of those accountability measures would have been imple-
mented without a high-profile leak, leaving us with the same structural problems of
secrecy. So long as there are secret national security programs for which the
accountability mechanisms don’t fully function, we are still choosing to live with
a system that corrodes our rule of law principles and leads to a less democratic and
functional form of governance.
Finally, as discussed, an overreliance on secrecy inverts the traditional political
structure of a democracy that is predicated on people having the right to live
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
how did we get here?

The hardening of national security secrecy norms in the post–September 11 period
is simply an extension of the shifts in power and information that have been
occurring over many decades. As the professionalization of military decision-
making took hold by the mid-twentieth century, Congress, the judiciary, and the
public were largely seen as observers to security-related policy-making.49 It was
a logical next step and beneficial to the administration to exclude the public and
other branches of government from having access to the information underlying
the decision-making.50 Thus, it is unsurprising that security-related secrecy inten-
sified in the late 1940s and onward as the Cold War developed and then anchored
security discourse.
The early Cold War period represented a crucial turning point in public,
judicial, and congressional access to national security-related information.51
Several interrelated dynamics led to the lack of information-sharing: the Cold
War shifted the U.S. security model, and professional intelligence-gathering and
access to information became central to U.S. military and global political goals.52
Further, the Cold War represented a challenge to the United States in terms of
foreign affairs and the government’s ability to extend the U.S. geopolitical sphere
of influence.53 The role of the executive as the constitutionally envisioned
decision-maker in matters involving foreign policy and foreign affairs enabled
the consolidation of national security power in the executive branch. Even so,
early Cold War era commentators opined that the professionalization of the
military establishment in the World War I era undermined the constitutional
structure of civilian control over the military, and that this restructuring of power
was being cemented by the lack of information being made available outside of the
executive branch in the post–World War II era.54
Finally, much of the domestic rhetoric surrounding the Cold War included
a fundamental and perhaps existential unease that Soviet interests had permeated
U.S. society and that the loyalty of U.S. citizens was questionable. Certainly, the
activities of the House Un-American Activities Committee, the Senate Permanent
Subcommittee on Investigations, and other congressional bodies reflect this concern

in the early Cold War era. 55 Once this concern took root, the argument that
information access over security-related information must be limited to the execu-
tive branch to protect national security became compelling to courts and to
Congress, despite contemporary concerns that the military could use secrecy to
avoid oversight and public or judicial accountability.56
Congress participated actively to cede both the authority to make national security
decisions and to control access to national security-related information. Statutes
passed in the early Cold War period enabled administrative control of the collection
and classification process for secret information.57 The sporadic public resistance to
this shift in power encouraged Congress to attempt to regain public trust. For
example, Congress established the Commission on Government Security (also
known as the “Wright Commission”) in 1955,58 with the purpose of conducting
active oversight of security matters. In addition to structuring the Wright
Commission to include bipartisan representatives and private citizens selected by
both houses of Congress and the President,59 the Wright Commission was given
a broad mandate to “study and investigate the entire Government security program,
including . . . national defense secrets.”60
Such oversight might have alleviated contemporary concerns related to the rising
security and secrecy state, but the Wright Commission’s sole legislative proposals
were to amend criminal statutes to enable prosecution of those who made classified
information public and to allow for evidence of subversion obtained through
wiretaps authorized by the Attorney General to be admissible in court.61
The legacy of the Wright Commission in terms of its impact on congressional
oversight of military decision-making was, perhaps ironically, to encourage further
legislative allowances for increasing and protecting secrecy against the constitu-
tional interests of free expression and privacy.62
Likewise, the judiciary took little interest in combatting security-related secrecy.
The seminal case illustrating the judicial-political dynamic in the early Cold
War era is United States v. Reynolds,63 discussed in Chapter 3, establishing the
U.S. standard for evaluating executive branch and military claims of the state
secrets privilege, and helping cement the idea that national security information is
often too sensitive to be disclosed even to the courts.64 Notably, although the
standard established in Reynolds specifically allowed the reviewing court to exam-
ine the underlying documents in camera65 as a means of evaluating the sufficiency
of the privilege claim, the Reynolds Court decided that the trial court did not need
to do so. This aspect of the Court’s holding turned on its perception that “this is
a time of vigorous preparation for national defense,”66 thereby making clear that it
agreed with the executive assertion that secrecy is an integral part of effective
national security. Under this framework of security decision-making, to encourage
judicial access to information – even for in camera review – would unacceptably
compromise security interests.67
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
has supported some challenges to security-related decision-making. The experiences

of the United Kingdom and India offer useful insight as to how national security
transparency may develop or be jettisoned in different historical contexts, thereby
making this comparative analysis all the more relevant for consideration of potential
domestic reforms.
What the analysis above suggests is that we need to look critically, comparatively,
and systematically at the national security secrecy structure that has been
constructed and concretized over the last several decades. Although keeping secrets
will continue to be necessary to maintain national security programs, the larger
question of structural accountability and oversight demands we consider how we
can create a better and fairer system of secrecy, hopefully one that encompasses
a richer and more critical discussion in public and in government of processes,
rights, values and norms. Looking at how transparency and security are considered
within the U.S. system, and at similar problems being worked through in other
nations, provides us with a basis by which to understand what kinds of reforms are
possible, likely, and potentially useful.
**
As a final note, I point out what is already clear to many readers; the fields of politics
and national security move and change quickly, although the structural critique and
institutional analysis of those developments will remain largely the same in many
instances. My last round of substantive editing on this book was completed in
early March, 2017. At that time, there were a great number of uncertainties as to
many of the issues detailed in this book, including the Trump administration’s
approach to matters of national security secrecy and oversight, the European
Union’s quickly-evolving jurisprudence on privacy and transparency rights, the
impact of “Brexit” on U.K. security and transparency obligations, and the Modi
government’s security approach in India in light of the global movement toward
a more muscular and reactive nationalism. These and other subsequent develop-
ments must await future analysis elsewhere.
Another random document with
no related content on Scribd:
"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."
"Mysteries everywhere. People pity Samuel. I don't—not now, I did

once, because it's the fashion to think anybody's lacking reason is a sad
sight. Why? Brains are like money—poison so often as not. My brains have
poisoned me—fretted and festered and burnt out my soul like an acid. The
more I see of the wild, innocent creatures, the more I feel that reason's not
all we think it, William. You can't fetter the soul down to reason. What has
reason done for me? The little comfort I get now is outside reason. Reason
only goads me into wanting to end it and make away with myself. That
would be the reasonable thing. What happened yesterday? Auna found a
rhyme book that belonged to my wife. And in that book was a sprig of
white heath I picked for her on a wonderful day we had, just after she had
promised to marry me. There it was faded to brown—more than twenty
years old. And what else did Auna find? Between the pages she found the
crumbs of a little sweet biscuit—a sort of a little biscuit, William, that
Margery loved. Where's the reason when a crumb of wheat can stab the soul
deeper than a sword? And what then? What did Auna say? Nothing in
reason, God knows. 'Father,' she said, 'you and me will eat these crumbs—
then we'll have shared the biscuit with dear mother.' A holy sacrament—
yes, faith—'holy's' not too strong a word. We ate the crumbs, and there was
a strange, mad comfort in it; and the child smiled and it made her happier
too. You could see it in her face. Why? Why? All darkness—no answer.
And the little verse book, with the heather bloom, will be in my breast
pocket now till I die—never out of reach of my hand—warmed daily by my
warmth. Why? Can reason tell me? No—it's only because I'm gone below
reason, William."
"Or it might be above it, my son."
"Such things make your head whirl. If there's to be happiness in heaven,

we mustn't be built like we are here. Fear must be left out of us and the
power of remembering. We must be suffered to forget earth, William; yet,
what would that make of heaven? Nothing. It all tumbles to pieces
whichever way you think of it, for reason, whether it is a good or evil thing,
makes heaven a wilderness."
"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."
Then Bullstone limped away. He soon grew calmer, as he was wont to

do when alone with nobody to whet his thoughts upon.
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."
"Your mother's dead," he told her; "but we shan't be without a lot of

treasures to remind us of her."
"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.
They wandered through the stone-paved kitchen and climbed to the

little chambers above, while for the twentieth time, Jacob planned how
things should be.
"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."
She was happy when he spoke thus tenderly sometimes.
"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."
"I'm afraid I don't understand about poetry, father."
"You'll come to understand it when you're older, perhaps. She

understood it and got pleasure from it."
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.
"Will time speed swifter here, Auna?"
"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."
Auna's eyes sparkled.
"I'd like that dearly," she told him.
"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.
"Oh, father—it's 'Beardy,'" whispered Auna.
"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."
Auna descended among the bones and picked up "Beardy's" horns.
"Peter will like to have them for a decoration," she said. "I hope he
didn't suffer much, poor old dear."
"Not much, I expect."
"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."
"Did his wives miss him, should you think?"
"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."
"And so have I been sorry for him, too."
They tramped on together and presently Jacob spoke. He was thinking

still of her last speech and his mind had turned dark.
"The Scape-goat in the wilderness was a happy beast compared to me,"

he said suddenly. "He went to his doom a clean thing—a harmless creature,
pure as Christ's self under his filthy load of human sins. For a foul burden
doesn't make the carrier foul. He'd done no wrong and wondered, perhaps,
in his brute mind, why the scarlet thread was tied upon him and he was
driven into the unkind desert, far from his bite of green grass and the
shadow to guard him against the burning sun. But I'm different. I'm a goat
caked and rotted with my own sins. The sins of the world are white and
light against mine."
"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
THE AUTUMN WIND
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.
They watched silently; then came a flash, a puff of white smoke,

whirled instantly away on the wind, and a dull explosion that reverberated
from the hill above. The great stone was sundered and they returned to it,
bringing the horse and cart with them.
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."
Samuel was regarding the boulder with a puzzled face.
"Where be her name going?" he asked.

"The name goes on the side, Sammy," explained Jacob. "Blake, the
stone-cutter, was up over a bit ago and took my meaning."
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.
But the other heeded not the rain.
"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."
"Give me a dram," said Jacob, "and listen to me."
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.
It was Amelia Winter in her pattens.
"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."
"Not Adam? He don't storm against nothing."
"No—t'other. My old friend. He ain't through the wood by a long way

yet, Amelia. His thoughts and griefs crowd down on him like a flock of foul
birds, and shake the roots of his life something shocking."
"'Tis well if the Lord's Hand is heavy," she answered.
"So it should be, if there's justice in the world."
"Try to think kindly on the man. He's suffered much."
"I live with Adam Winter," she answered and went her way.
CHAPTER VI
THE CHILDREN
Accident sometimes invoked a strange spectre of the old jealousy in

Jacob Bullstone—that quiddity of his nature responsible for his ruin. It
flashed now—a feeble glimmer of the ancient emotion—and involved
Auna. She alone in his opinion cared any longer for him, or felt interest in
his fortunes; therefore he was quick to resent any real, or fancied, attempts
on the part of others to weaken the bonds between them. Such a task had in
truth been impossible, yet there came hints to his ear that the girl should not
be dragged with him into the fastness of the moor. He had to some extent
lost sight of her natural demands and requirements. He little liked her to be
overmuch interested in affairs that no longer concerned himself; but she
was intelligent in this matter and, helped by advice, kept in closer touch
with her relations than Jacob knew. With her grandmother Auna had indeed
broken, for Judith declined to see her any more, and the younger did not
pretend sorrow; but with Barlow Huxam, and with her Uncle Jeremy and
Aunt Jane, she preserved a friendship they did not report to Mrs. Huxam;
while despite harsh sayings against them from her father, Auna continued to
love John Henry and Avis. She was loyal, would not hear a word against
Jacob, and set him always first. She regarded the coming life at Huntingdon
as no ordeal, but a change of infinite promise, because it might bring him
nearer peace. Meantime, behind Bullstone's back others were busy in hope
to change his plans, and these alternatives were placed before him by his
children.
The occasion found him fretful after a period of comparative

contentment. He was unaware that time cannot stand still, and in the usual
parental fashion continued to regard his family as anchored to childhood.
He was smarting under grievances on a day that he met Adam Winter and
walked with him from Brent to Shipley.
"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."
"No doubt there is a bargain," admitted Winter. "I speak as a childless

man and my word's of no account; but you've been quick to see what you
owed your own, and I hope they do the like. If they don't, so far, that's only
to say they're young yet. They will get more thoughtful with years."
"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."
Jacob grew calmer.
"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."
"He can't fail to know it."
"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."
"Nature and order can't be swept away," answered Winter. "Your

children are very orderly children, and no doubt they'll do as you wish; but
you mustn't think to go out of their lives and deny them your wisdom and
advice. You've got your bargain to keep still, while you're in the land of the
living. You mustn't wash your hands of 'em. You must show 'em that you're
part of 'em yet, and that their good is yours and your good is theirs."
"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."
"You're wrong there," answered the elder. "Youth's hard, narrow,

ignorant and without heart. I want to get her away for her own sake. She's a
flower too fair to live with weeds. She's her mother again. The rest are dross
to her—workaday, coarse stuff, wishing me dead as often as they trouble to
think on me at all."
Adam argued against this opinion and indeed blamed Bullstone heartily.
"Don't you be poisoned against your own," he said. "The hardness of

youth isn't all bad. It often wears out and brings tenderness and
understanding with experience. I'd never fear a hard youngster: it's the
hardness of middle age that I'd fear."
And no distant day proved Adam to have spoken well. A certain thing
fell out and Jacob remembered the other's opinion, for it seemed that
Winter's prophecy came true quicklier than even he himself might have
expected it to do so. On a certain Sunday in February their father received a
visit from John Henry and Avis. The latter did not bring her husband, since
the object of their visit proved purely personal to the family.
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.
"You'll catch it from Mrs. Huxam, playing about on Sunday," he said.
"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."
"We haven't come to squeeze you, father—quite the contrary," declared

Avis.
"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."
"What you think is no great odds," answered Bullstone. "And why

should you think at all about it?"
"I'll tell you after dinner."

He changed the subject and began talking of his farm. Already he had
new ideas.
"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."
"It's yours, John Henry. You'll do as you think best."
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.
They found him silent and absorbed. He seemed to withdraw himself

and pursue his own thoughts under their chatter. They addressed him and
strove to draw him into their interests, but for a time they failed to do so.
Once or twice Avis and Auna whispered together and Auna was clearly
excited; but Avis quieted her.
"I'll tell him myself come presently," she said.
When dinner was done, John Henry spoke.
"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."
He looked at them dreamily.
"What big idea could you have that I come into?" he asked.
"Why, you yourself and your future."
"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."
"Nothing about Auna?"
"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."
Then John Henry spoke without temper.
"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

PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter

Uploaded by

Copyright:

Available Formats

PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

PDF National Security Secrecy Comparative Effects On Democracy and The Rule of Law Sudha Setty Ebook Full Chapter

Uploaded by

Copyright:

Available Formats

National Security Secrecy Comparative

Effects On Democracy And The Rule Of

National Constitutions in European and Global

Free market criminal justice : how democracy and

In The Name Of Security Secrecy Surveillance And

Rule of Law Human Rights and Judicial Control of Power

A Life in law and activism 1st Edition Sudha Bharadwaj

Rule of Law and Fundamental Rights: Critical

Resisting Education A Cross National Study on Systems

The Law of Emergency Powers: Comparative Common Law

ASCL Studies in Comparative Law is designed to broaden theoretical and practical

Cambridge University Press is part of the University of Cambridge.

part i the infrastructure of secrecy in the united

1 Executive Branch Secrecy 19

3 An Overly Deferential Judiciary 53

part ii comparative perspectives on transparency 73

4 International and Supranational Norms 75

5 The United Kingdom 87

part iii societal tolerance for national security

7 Public Fear and Resilience 121

8 Individual Privacy and Secrecy: A Matter of Contract or a Human

h arv . na t ’ l s e c u r it y j . 185 (2012); The Rise of National Security Secrets, 44

legal interpretation remains secret, although the Snowden disclosures prompted

conducted inverts the democratic structure of transparency in ways that undermine

government principles ought to be applied at their strongest in the national security

types of national security secrets

Declaration of Human Rights,26 the Geneva Conventions,27 the International

harms caused by overreliance on national

accountability measures are in place tends to be inadequate in terms of efficiency,

how did we get here?

Subcommittee on Investigations, and other congressional bodies reflect this concern

has supported some challenges to security-related decision-making. The experiences

"Mysteries everywhere. People pity Samuel. I don't—not now, I did

"Or it might be above it, my son."

"Such things make your head whirl. If there's to be happiness in heaven,

Then Bullstone limped away. He soon grew calmer, as he was wont to

"Your mother's dead," he told her; "but we shan't be without a lot of

They wandered through the stone-paved kitchen and climbed to the

She was happy when he spoke thus tenderly sometimes.

"I'm afraid I don't understand about poetry, father."

"You'll come to understand it when you're older, perhaps. She

"Will time speed swifter here, Auna?"

Auna's eyes sparkled.

"I'd like that dearly," she told him.

"Oh, father—it's 'Beardy,'" whispered Auna.

Auna descended among the bones and picked up "Beardy's" horns.

"Not much, I expect."

"Did his wives miss him, should you think?"

"And so have I been sorry for him, too."

They tramped on together and presently Jacob spoke. He was thinking

"The Scape-goat in the wilderness was a happy beast compared to me,"

THE AUTUMN WIND

They watched silently; then came a flash, a puff of white smoke,

Samuel was regarding the boulder with a puzzled face.

"Where be her name going?" he asked.

But the other heeded not the rain.

"Give me a dram," said Jacob, "and listen to me."

It was Amelia Winter in her pattens.

"Not Adam? He don't storm against nothing."