Transparency in the First 100 Days | Secret Law
The Brennan Center’s detailed 30-page report card reveals President Obama’s need to improve transparency and accountability in the development and implementation of national security policy. This page offers detailed analysis and recommendations pertaining to secret law.
In a free democratic society, the law should be public. Indeed, the notion of secret law has been described by judges and academics alike as "repugnant" and "an abomination." Thus, with very few exceptions, federal statutes are published and made widely accessible.
But "the law," properly conceived, includes more than just the words that legislators place in the U.S. Code—it also includes the interpretations of those words that govern how the executive branch actually implements them. Interpretations by judges, for example, are understood to be an operative part of the law (and are generally made public). The same is true for authoritative legal interpretations by the executive branch, whether issued by the Justice Department's Office of Legal Counsel or by the President himself.
The Bush administration closely guarded its interpretations of the law, leaving the public and Congress to guess at how—or even whether—the statutes on the books were being implemented. The Obama administration has done much to shed light on the Bush administration's secret interpretations of the law; perhaps even more important, it has taken steps suggesting that it will be more forthcoming about its own interpretations.
Release of Bush-era OLC opinions
President Obama has released many of the most controversial memoranda issued by the Justice Department's Office of Legal Counsel (OLC) under the Bush administration. These opinions were withheld from Congress and the public for years, existing as a body of secret law known only to the executive branch. President Obama's release of these memos takes a significant step toward shedding light on the excesses of the Bush administration and, more broadly, repudiating the concept of secret law.
OLC's interpretations of the law are binding on the entire executive branch. Absent a contrary court ruling, they are the last word on how the executive branch implements the law. As such, it is critical for Congress and the public to have access to these opinions in order to advance accountability and informed public deliberation. The Bush administration, however, refused to disclose OLC opinions on its controversial counter-terrorism programs, citing a variety of privileges and classifying opinions even when they did not contain any information that could compromise national security.
This withholding of OLC opinions was particularly disturbing because of what they contained. Several of the opinions—in particular, those that discussed "enhanced" interrogation techniques and warrantless wiretapping—concluded that the executive branch was not required to adhere to the terms of federal statutes or treaties. Regardless of one's views on whether the executive branch may simply disregard laws it considers unconstitutional, the public has a right to assume that the executive branch is adhering to the statutes passed by Congress, and to be informed if that is not the case. Otherwise, the country would be governed by two sets of laws: the public law, known to Congress and the public, and a contradictory regime of secret law, known only to the executive branch. A democracy cannot function on those terms.
The Brennan Center has long advocated the release of these secret OLC opinions. On March 2, 2009, the administration on its own initiative released nine of the previously secret memoranda. They shed much-needed light on the legal reasoning behind many of the Bush administration's most controversial counter-terrorism policies, including the legal rationale for the CIA's program of "enhanced" interrogation techniques. The memos detailing the techniques themselves, however, remained undisclosed.
Facing a deadline in a FOIA lawsuit brought by the American Civil Liberties Union, the administration stated its intent to release this second category of memos. According to news reports, Attorney General Eric Holder, Director of National Intelligence Dennis Blair, and White House Counsel Greg Craig supported the release of these memoranda. Other members of the intelligence community, however—in particular, former Bush CIA officials and current CIA Director Leon Panetta—strongly opposed disclosure and threatened dire consequences if the specific techniques were released.
To his credit, President Obama resisted the strong political pressures against disclosure and released four OLC memoranda on April 16, 2009. Because of these memoranda, we now have certain knowledge that the CIA's interrogation program—discontinued by the Obama administration—included techniques such as waterboarding, forcing detainees into "stress positions," confining them in small boxes, depriving them of sleep for up to a week at a time, and dousing them in frigid water. There is no longer any serious question that the Bush administration endorsed and practiced torture in violation of U.S. and international law. In that regard, the release of the memoranda is a significant victory for transparency.
Two caveats apply, however. First, the release was accompanied by a statement by President Obama pledging that the administration would not prosecute any violations of the law by CIA employees who relied on the memoranda. Many have speculated that a "deal" was struck: the intelligence community would drop its vocal opposition to the memos' release if President Obama pledged to forego prosecution.
If true (and it is only speculation at this point), this would be quite disturbing. Reasonable people can disagree on whether the OLC memoranda should insulate CIA employees who relied on them. But one thing should be clear: a decision not to prosecute should be based on the merits—not as a quid pro quo for obtaining acquiescence in the release of the memoranda. One of the core functions of transparency is to enable accountability. If accountability is traded for transparency, then it is a hollow victory at best.
Second, many of the Bush-era OLC memos, including several that address Bush's warrantless wiretapping program, have yet to be released. According to a tally by the ACLU, there are still almost 60 OLC memos from the Bush administration on the subjects of interrogation, detention, rendition, or surveillance that remain secret. In releasing the interrogation memos, President Obama stated that "exceptional circumstances" justified the release, and that "the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities." It is thus unclear whether the release of the interrogation memos heralds an era of greater transparency for other OLC opinions addressing national security matters.
Without waiting for further lawsuit deadlines, provide an exhaustive list of as-yet-unreleased OLC memoranda and promptly release them, redacting only those operational details that are properly classified.
Nomination of a transparency advocate to head OLC
Reforming government secrecy requires more than changing policy and law. It also requires a change in attitude, norms, and bureaucratic culture, which in turn requires the right leadership within government agencies and offices. In that regard, President Obama's nomination of Dawn Johnsen to head OLC holds enormous potential for ending that office's regime of secret law.
Johnsen, an Indiana University law professor, was an OLC attorney for several years and headed the office for a two-year period under President Clinton. Both in and out of government, she has been a strong and thoughtful advocate for transparency on the part of OLC. As the Brennan Center has argued, her nomination is a step toward restoring the rule of law at the Department of Justice.
Johnsen decried the blanket secrecy that the Bush administration applied to OLC memos. In 2004, she co-authored a set of "Principles to Guide the Office of Legal Counsel," joining 18 other attorneys with OLC experience to advocate the values of transparency, accountability, and the rule of law. The document includes the principle that "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." It explains that "[s]uch disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority." It further notes that "Presidents, and by extension OLC, bear a special responsibility to disclose publicly and explain any actions that conflict with federal statutory requirements."
The document also states that "some legal advice . . . properly should remain confidential, most notably, some advice regarding classified and some other national security matters." However, Johnsen appears to construe this national security exception much less broadly than the Bush administration did. Thus, when one of the infamous torture memos was made public in 2008 (five years after its issuance), Johnsen expressed "outrage," not only at the memo's contents, but also at "the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it."
In 2008, Johnsen testified before the Senate Judiciary Committee's Constitution Subcommittee that excessive secrecy undermines democratic accountability. "Congress and the courts cannot possibly safeguard against executive branch overreaching or abuses if they (and potential litigants) do not know what the executive branch is doing," she stated. She raised concerns about OLC's "central role" in advancing secret law: "OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public—particularly when advising the executive branch that in essence it could act contrary to federal statutory constraints." Following that hearing, Johnsen assisted in the drafting of, and wrote a letter supporting, the OLC Reporting Act of 2008, a bill that would require the Justice Department to notify Congress when it determines that the executive branch is not bound by a statute.
At time of writing, the Senate has not yet voted on whether to confirm Johnsen. But the nomination on its own speaks volumes about the level of transparency President Obama contemplates for OLC under his administration.
Strongly defend Johnsen's nomination.
Level of detail in signing statements
On two occasions, President Obama has followed his predecessor's practice of using signing statements to signal that he will not fully comply with a federal statute. While these signing statements are deeply problematic from a rule of law perspective, the relatively detailed nature of President Obama's signing statements represents an improvement from a transparency perspective.
Signing statements historically have been used to convey the president's impressions and interpretations of federal statutes. Presidents have frequently issued statements praising statutes' goals or setting forth their interpretation of ambiguous provisions. On occasion, however, presidents have used signing statements to indicate their belief that certain provisions of the statute are unconstitutional. Insofar as these statements convey an intent not to enforce those provisions (or to "construe" them in a way that essentially nullifies them), some legal scholars view them as the functional equivalent of a "line-item veto," which the Constitution does not permit.
The Bush administration's abuse of signing statements was particularly problematic. Whereas previous administrations, all combined, used signing statements to challenge the constitutionality of some 600 statutory provisions, the Bush administration challenged more than 1,100 statutory provisions in eight short years. Moreover, many of President Bush's signing statements were vague to the point of being uninformative: they identified neither the statutory provision at issue, nor the basis for the administration's objection. Congress and the public were thus left to guess at which parts of the statute would be implemented and which would be ignored, as well as what changes might be necessary to satisfy the President of the statute's constitutionality.
During his presidential campaign, Obama stated that he would "not use signing statements to nullify or undermine congressional instructions as enacted into law." After he took office, President Obama added an important qualification to this statement: he asserted that he would not use signing statements "to suggest that the President will disregard statutory requirements on the basis of policy disagreements"—leaving open the possibility that he would use signing statements to nullify congressional instructions where those instructions, in his view, posed constitutional concerns. But he added that his signing statements would "identify [his] constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection."
In a March 9, 2009 statement accompanying the Omnibus Appropriations Act and a March 30, 2009 statement accompanying the Omnibus Public Land Management Act, President Obama reneged on his campaign promise not to nullify or undermine congressional instructions. The subject of this report card, however, is transparency—and on that count, he did much better. The signing statements in question specifically identified most of the statutory provisions to which the President objected—although in some cases, he used more general language like "[c]ertain provisions of the bill in titles I and IV of Division B, title IV of Division E, and title VII of Division H." Furthermore, he specifically identified the nature of his objection in each instance. This transparency allows the public to understand and debate the President's action, a process that is in fact taking place with respect to both signing statements.
On the matter of the transparency of his signing statements, we must give President Obama a fairly high score. Nonetheless, although it is beyond the scope of this report, we call on the President to renounce the use of signing statements to circumvent the law (as we did under the previous administration). The President can and should veto statutes that he believes to be unconstitutional, with his veto subject to congressional override. If he objects only to certain provisions, he should work with Congress to change them. Beyond that, however, the President's assessment of a statute's constitutionality is no more authoritative than that of Congress. Only the courts are entitled to strike down statutes or provisions thereof. This is the system of checks and balances that the Founders intended, and one that ensures adherence to the rule of law.
Specifying every objectionable statutory provision would help; but ceasing reliance on this type of signing statement would be even better.