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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Increasingly, government actions rely on secret legal memos, classified court opinions, and unpublished regulations.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.


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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