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Report

The New Era of Secret Law

An unpre­ced­en­ted buildup of secret law has been created by the federal govern­ment since 9/11 through legal memos, court opin­ions, agree­ments with foreign nations, and more. All have been issued without public scru­tiny or input — and many impact crucial decisions about the lives and liber­ties of U.S. citizens, from the use of torture to mass surveil­lance.

See the Free­dom of Inform­a­tion Act docu­ments refer­enced in this report and a chart of signi­fic­ant Foreign Intel­li­gence Surveil­lance Court opin­ions here.

Read the press release for The New Era of Secret Law.


Intro­duc­tion

On June 8, 2004, The Wash­ing­ton Post revealed the exist­ence of a previ­ously secret memor­andum draf­ted by the Depart­ment of Justice’s Office of Legal Coun­sel (OLC), which concluded that the laws prohib­it­ing torture did not bind offi­cials inter­rog­at­ing suspec­ted members of Al Qaeda or the Taliban. This was the first in a series of legal opin­ions that became known as the “torture memos.” These docu­ments parsed the domestic and inter­na­tional laws against torture and, in seem­ing contra­dic­tion to their plain terms and histor­ical imple­ment­a­tion, determ­ined that they posed no barrier to a pres­id­en­tially-ordered regime of water­board­ing, so-called “stress posi­tions,” slam­ming against walls, expos­ure to extremes in temper­at­ure, and sleep depriva­tion.

Nearly a decade later, The Guard­ian broke a differ­ent story: the Foreign Intel­li­gence Surveil­lance Court, also known as the “FISA Court,” had been secretly author­iz­ing the National Secur­ity Agency (NSA) to collect the phone records of all Veri­zon Busi­ness custom­ers — and almost certainly the custom­ers of every other major tele­phone company — since 2006. This appeared to viol­ate Section 215 of the Patriot Act, which allowed the NSA to obtain such records only if it could show the FISA Court they were relev­ant to an inter­na­tional terror­ism or foreign intel­li­gence invest­ig­a­tion. The court, it turned out, had secretly inter­preted this law to allow the collec­tion of vast amounts of irrel­ev­ant records, as long as relev­ant ones were thought to be buried within them.

What these stor­ies had in common was the govern­ment’s reli­ance on “secret law.” Both the OLC memos and the FISA Court opin­ions were author­it­at­ive legal inter­pret­a­tions: while they were in effect, they had the same legal force as the stat­utes they inter­preted. Both were concealed from the public and shared with only select members or commit­tees of Congress. And both construed the law in a way that was at best coun­ter­in­tu­it­ive, result­ing in a dynamic where the law on the books misled the public, rather than enlight­en­ing it, as to the rules the govern­ment was actu­ally follow­ing.

Amer­ic­ans intu­it­ively under­stood that this was wrong. In 2008, a subcom­mit­tee of the Senate Judi­ciary Commit­tee held a hear­ing on “secret law,” culmin­at­ing in the intro­duc­tion of a bill that would have required OLC to notify Congress when it concludes that a stat­ute does not constrain the exec­ut­ive branch. Although the full Senate never considered the bill, the secrecy of OLC opin­ions has remained contro­ver­sial, and efforts to pry them loose through Free­dom of Inform­a­tion Act (FOIA) lawsuits continue. In 2015, Congress required the Director of National Intel­li­gence to make public signi­fic­ant FISA Court opin­ions, in redac­ted or summar­ized form where neces­sary.

Yet despite the instinct­ive back­lash against secret legal opin­ions by OLC and the FISA Court, there is much about secret law that remains poorly under­stood. What qual­i­fies as “law” — and, for that matter, how “secret” the law must be in order to raise concerns — are threshold ques­tions that have received little atten­tion. Simil­arly, few are famil­iar with the role secret law has played in U.S. history, which provides crit­ical context for the phenomenon we are seeing today. And while the term “secret law” prompts visceral discom­fort, it is import­ant to under­stand why secret law is of greater concern than other forms of govern­ment secrecy that we toler­ate and even condone. The objec­tions to secret law should be artic­u­lated, not assumed.

Most of all, there is scant public under­stand­ing of the depth and scope of the prob­lem. OLC opin­ions and FISA Court opin­ions are the only two mani­fest­a­tions of secret law that regu­larly make head­lines. But OLC and the FISA Court are not the only govern­ment entit­ies that make law. Moreover, the factor driv­ing secrecy in OLC and FISA Court opin­ions — namely, a dramatic increase in the scope of national secur­ity activ­it­ies and author­it­ies — is a potent force through­out much of govern­ment. How common is secur­ity-driven secret law, and where else is it occur­ring?

Solv­ing the prob­lem of secret law raises its own set of ques­tions. Are there cases in which disclos­ure of rules or legal inter­pret­a­tions, even with sens­it­ive facts redac­ted, could harm national secur­ity? How great is that risk, and how does it compare with the harms of secret law? What proced­ural and substant­ive reforms could help ensure that the public’s interests in both the trans­par­ency of laws and the secur­ity of the nation are best served?

This report attempts to shed light on these ques­tions, begin­ning with the found­a­tional inquiry into what secret law is.