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Trump and the Dangers of Secret Law

Trump will soon inherit the secret laws generated under the Bush and Obama administrations. What actions will they permit? How will we know what limits they impose—and when he has exceeded them?

January 12, 2017

Cross-posted at The Amer­ican Prospect

Pres­id­ent-elect Trump has disdained the rule of law when it comes to national secur­ity, vowing to rein­sti­tute torture and suggest­ing that the milit­ary should target terror­ists’ famil­ies. In response, Pres­id­ent Obama recently released a report describ­ing the legal and policy frame­work for United States milit­ary oper­a­tions. The idea is simple: If the rules are made public, it will be easier to hold the Trump admin­is­tra­tion account­able for viol­a­tion­s—or to spot when the rules have changed.

Obama is undoubtedly correct in calcu­lat­ing that legal trans­par­ency will help safe­guard the rule of law. But his initi­at­ive begs the ques­tion: why stop at milit­ary oper­a­tions?  

Since the attacks of 9/11, every area of national secur­ity policy has increas­ingly been regu­lated by secret law. For instance, much of the author­ity to conduct mass surveil­lance, and the limits that apply, are set forth in clas­si­fied orders of the Foreign Intel­li­gence Surveil­lance Court (or “FISA Court”). In 2013, Edward Snowden revealed that this court had secretly inter­preted the Patriot Act to allow the collec­tion of nearly every Amer­ic­an’s phone records.

A 2015 law ended the bulk collec­tion program and brought some trans­par­ency to the FISA Court’s rulings. But other mass surveil­lance programs remain intact—and around 30 of the court’s most signi­fic­ant opin­ions are still secret.

National secur­ity policies are also governed by secret opin­ions of the Justice Depart­ment’s Office of Legal Coun­sel (OLC). OLC is best known for the infam­ous “torture memos” of the Bush pres­id­ency, which concluded that the laws prohib­it­ing torture did not apply to the inter­rog­a­tion of suspec­ted terror­ists. These inter­pret­a­tions green­lighted the CIA’s use of barbaric tech­niques like water­board­ing, “stress posi­tions,” and sleep depriva­tion.

Obama ended the CIA’s use of torture and forbade exec­ut­ive offi­cials from rely­ing on Bush-era OLC opin­ions on inter­rog­a­tion. But Trump could reverse this direct­ive, either openly or secretly. And, while Obama publicly released several torture memos, recently released Justice Depart­ment docu­ments show that at least 74 Bush-era OLC opin­ions on subjects includ­ing deten­tion, inter­rog­a­tion, and intel­li­gence gath­er­ing are still clas­si­fied.

Secret law is worri­some under any admin­is­tra­tion, let alone one headed by an admirer of Vladi­mir Putin. It allows the govern­ment to evade the demo­cratic lawmak­ing process, and to give itself powers that conflict with the elect­or­ate’s wishes—or with published laws. Even when secret law limits govern­ment action, there is no way to hold the govern­ment account­able for viol­at­ing unknown constraints. This prac­tical immunity makes compli­ance optional.

Trump will soon inherit the secret laws gener­ated under the Bush and Obama admin­is­tra­tions. What actions will they permit? How will we know what limits they impose—and when he has exceeded them?

If Obama is commit­ted to shor­ing up the rule of law, he should make more of that law public. Some legal opin­ions may contain factual details about intel­li­gence oper­a­tion­s—such as names or loca­tion­s—that cannot be disclosed without risk to national secur­ity. In such cases, the solu­tion is to redact those details, not to with­hold the legal analysis in its entirety. 

In light of the limited time avail­able and the resource-intens­ive nature of declas­si­fic­a­tion, there are a few specific legal opin­ions that should receive prior­ity, based on the sweep­ing powers they reportedly endorse. 

First, recent news reports revealed that the FISA Court in 2015 ordered Yahoo! to scan all of its custom­ers’ incom­ing emails and turn over those contain­ing a certain “digital signa­ture.” If true, this would be an unpre­ced­en­ted expan­sion of the law that reportedly author­ized the surveil­lance. But without access to the opin­ion, we don’t know what the court’s legal reas­on­ing was or how broadly it sweeps. Would it allow Trump to order every company to scan the contents of all domestic email traffic?

Second, a 2010 report by the Justice Depart­ment’s inspector general discussed an OLC opin­ion on FBI intel­li­gence activ­it­ies. While the discus­sion is heav­ily redac­ted, the OLC opin­ion seem­ingly concluded that the FBI may bypass stat­utory constraints on collect­ing data about Amer­ic­ans’ elec­tronic commu­nic­a­tions. The inspector general warned that the opin­ion “creates a signi­fic­ant gap in FBI account­ab­il­ity that should be examined closely by the FBI, the [Justice] Depart­ment, and Congress.” Could Trump exploit this gap to resume bulk collec­tion of Amer­ic­ans’ phone records, notwith­stand­ing the 2015 law that prohib­its it?

Finally, an unknown number of Bush-era OLC opin­ions on deten­tion and inter­rog­a­tion remain clas­si­fied. With Trump having pledged to repop­u­late Guantá­namo and resume water­board­ing, we cannot toler­ate any legal inde­term­in­acy. There should be no secret OLC opin­ions on these subjects.

Making these legal author­it­ies public would not prevent the Trump admin­is­tra­tion from creat­ing its own secret law. A solu­tion to that prob­lem will require action by Congress. But disclos­ure could enable us to see when exist­ing legal lines have been crossed. And if we conclude that current author­it­ies give the incom­ing admin­is­tra­tion too much power, we can push Congress to set clear limits, which could make secret expan­sions more diffi­cult.

Obama’s own admin­is­tra­tion created many of the secret legal author­it­ies his successor will be exer­cising. It is now the pres­id­ent’s respons­ib­il­ity to honor the rule-of-law prin­ciples he has repeatedly espoused by releas­ing more of them.

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