The Government's Addiction to Secret Law

In an op-ed for The New York Times, Elizabeth Goitein writes a growing body of "secret law" enacted without public scrutiny or Congressional input poses a threat to the functioning of our democracy.

October 18, 2016

Crossposted from The New York Times.

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.

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Department in litigation reveal that 42 percent of binding agreements between the United States and other countries are unpublished.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.

Read the full op-ed at The New York Times.