National Security in the Courts: The Need for Secrecy vs. the Requirement of Transparency (Law and Society: Recent Scholarship)

Silver explores how judges identified the main legal issues in federal cases dealing with national security through the mode of legal analysis they used to reach or justify their conclusions. He explains how national security/transparency cases are as much about separation of powers issues as they are about balancing transparency with national security. In addition, although legal precedent remains important, judges have other, less traditional tools at their disposal. Finally, Silver concludes that the ability to selectively choose which legal issue to focus on and to rely on some modes of legal analysis while ignoring others gives the judges the flexibility to mold law regarding national security information.