The New Era of Secret Law

October 18, 2016

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.

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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.

The New Era of Secret Law by The Brennan Center for Justice on Scribd