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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.