The Government’s Addiction to ‘Secret Law’
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
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other countries are unpublished.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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