The Government’s Addiction to ‘Secret Law’

Elizabeth Goitein

Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and 
National Security Program and is author of the center’s report “The New Era of 
Secret Law.”

The Central Intelligence Agency’s torture of detainees, and the National 
Security Agency’s warrantless wiretapping of Americans’ international 
communications, were two of the most controversial programs our government 
implemented after Sept. 11. Both are now widely considered to have been 
illegal, even though both were authorized by official legal analyses that were 
withheld from the public — a phenomenon known as “secret law.”

The notion of secret law is as counterintuitive as it is unsettling. When most 
of us think of law, we think of statutes passed by Congress, and we take for 
granted that they are public.

Statutes, however, are only one kind of law. When the secret surveillance panel 
known as the Foreign Intelligence Surveillance Court, or FISA court, construed 
the Patriot Act to allow bulk collection of Americans’ phone records, that 
interpretation became part of the statute’s meaning. When President Obama 
issued procedures and standards for using lethal force against suspected 
terrorists overseas, agency officials were bound to follow them.

Mark Wilson/Getty Images
In the realm of national security, where Congress tends to tread lightly, other 
sources of law predominate — and a new study by the Brennan Center shows that 
they are frequently withheld from the public. Intelligence agencies routinely 
issue rules and regulations without publishing them in the Federal Register, 
exploiting what are intended to be narrow exceptions to the publication 
requirement. Most presidential directives addressing national security policy 
are not made public. Documents released by the State Department in litigation 
reveal that 42 percent of binding agreements between the United States and 
other countries are unpublished.

Secret law persists even in areas where we thought the secrecy had ended. 
Although President Obama is often credited for releasing controversial memos 
written by the Justice Department’s Office of Legal Counsel under the Bush 
administration — such as the infamous “torture memos” — new data show that at 
least 74 O.L.C. opinions from 2002 to 2009 on national security issues, 
including intelligence gathering and the detention and interrogation of 
suspected terrorists, remain classified. Similarly, despite the disclosure of 
many FISA court opinions following Edward Snowden’s revelations, new 
information from the Justice Department indicates that about 30 significant 
opinions remain secret.

We pay a high price for this system. Secret law denies us the ability to shape 
the rules that govern official conduct through the democratic process. It 
prevents us from holding the government accountable for violations, rendering 
such violations more likely. It weakens checks and balances, as both 
legislative and judicial oversight operate less effectively under the 
constraints imposed by secrecy.

Secret law is also bad law: When rules are developed by small groups of 
officials without the input of outside experts or stakeholders, their quality 
suffers. Indeed, an inherent conflict of interest exists when the executive 
branch enacts laws out of the public eye to govern its own actions. This can 
result in policies that are ineffective, ill advised or even contrary to 
statutes or the Constitution.

In theory, congressional oversight should stand in for public scrutiny. But the 
system breaks down in practice. Executive officials sometimes refuse to provide 
legal interpretations to oversight committees. Even when they have access, 
lawmakers often fail to push back against interpretations that go too far. 
After all, they have little incentive to take on the national security 
establishment when their constituents are not even aware that a problem exists.

The costs imposed by secret law are for the most part unjustified. National 
security frequently requires secrecy in the details of intelligence or military 
operations. Rules and regulations, however, establish general  standards for 
conduct; they do not normally include details like dates, times, targets or 
sources. As for opinions that apply the law in specific cases, if their authors 
anticipated disclosure, they could write in a manner that minimized the 
entanglement of law and fact. The sensitive information could then be redacted 
without obscuring the legal analysis.

There have been recent notable steps to rein in secret law. In 2015, Congress 
passed a law requiring more transparency in FISA court opinions, and the office 
of the director of national intelligence has published all of its “Intelligence 
Community Directives” online. These changes are proof of concept, as the law in 
these areas has become far more accessible without harm to national security.

We should now build on this progress. Decisions about what can be kept secret 
should be made by an interagency group rather than a single official. The 
standard for secrecy should be more specific and more demanding than the 
current, vague yardstick of potential harm to national security. Agencies 
should maintain public indexes, including certain basic information about each 
secret law, to enable challenges and an assessment of how the system is 
working. And there should be a firm limit on how long any law may remain 
secret. The president should order these changes, with Congress conducting 
public oversight to ensure their faithful implementation.

These reforms might not end secret law altogether. But they would help ensure 
that secret law was the exception, not the expectation, in national security 
matters. In this election year, as we honor our right to govern ourselves, 
those in power and those seeking it should affirm that a regime of secret law 
has no place in a democracy.
It's better to burn out than fade away.

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