It may seem ironic (or at the very least counterintuitive), but one of the more well-documented erosions of liberty during the Bush Administration has been that which has resulted from the culture of secrecy pervading governmental operations during the past eight years. It's now beyond doubt, as Geof Stone argues, that this culture has led to a sharp decline in both governmental accountability and transparency. Everything from low-level personnel decisions to the existence (let alone location) of overseas detention facilities has been obscured from public scrutiny, notwithstanding Justice Brandeis's famous observation that "sunshine is the best disinfectant," or, more recently, Judge Damon Keith's admonition that "democracies die behind closed doors."

Thus, I'm in 100% agreement with Professor Stone that governmental transparency is and must be a vital goal for President-Elect Obama's America, and passage of the four statutes he invokes in his post (and his longer essay in Democracy) would certainly be a helpful--albeit insufficient--step in that direction.

And yet, although we don't yet know what we don't know about the past eight years, we know at least to ask the secrecy question. In that sense, Stone's contribution is enormously helpful, but only with regard to one of the many ways in which the past eight years have witnessed an erosion of "liberty." My larger concern, heading into the new Administration, is the far less obvious erosion of liberty that I fear has resulted from the softening of the war/crime distinction--and the increasing ways in which the rules of one paradigm are seeping into the other.

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