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Project

Secret Law

Increasingly, government actions rely on secret legal memos, classified court opinions, and unpublished regulations. We’re working to expose and curtail this epidemic of secret law.

Overview

The federal govern­ment has issued an unpre­ced­en­ted number of secret laws since 9/11 in the form of legal memos, agency rules, court opin­ions, and agree­ments with foreign govern­ments. Issued without public scru­tiny or input, these legal author­it­ies set bind­ing stand­ards for govern­ment conduct and have far-reach­ing consequences for the lives and liber­ties of Amer­ic­ans.

Secret law exists across all branches of govern­ment. Bren­nan Center research found in 2016 that more than 70 Office of Legal Coun­sel opin­ions issued between 2002 and 2009 remained clas­si­fied, includ­ing opin­ions on intel­li­gence gath­er­ing and deten­tion and inter­rog­a­tion of suspec­ted terror­ists. We also found that about 30 signi­fic­ant legal opin­ions of the Foreign Intel­li­gence Surveil­lance Court, which approves mass surveil­lance programs, remained unpub­lished. And accord­ing to State Depart­ment docu­ments obtained by the Bren­nan Center in litig­a­tion, the United States entered into more than 800 secret agree­ments with foreign nations between 2004 and 2014 — agree­ments that had the same legal force as treat­ies.

We have developed a set of recom­mend­a­tions for limit­ing the extent and impact of secret law. Pure legal analysis and opin­ions that purport to release the U.S. govern­ment from compli­ance with stat­utes must never be clas­si­fied. In all other cases, the stand­ards for clas­si­fy­ing legal rules or inter­pret­a­tions should be raised, and an inter­agency panel — rather than a single offi­cial — should decide whether to clas­sify a sens­it­ive law. There should be a published index of secret laws contain­ing certain basic inform­a­tion, and there should be firm limits for how long law may remain secret.

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