Secret Law Debated in Senate Hearing

Secret law that governs the conduct of government activities but is inaccessible to the public is “a particularly sinister” phenomenon that is “increasingly prevalent,” said Senator Russ Feingold today at a hearing of the Senate Judiciary Committee Subcommittee on the Constitution.

The hearing produced a particularly rich record on the subject of secret law from a broad and diverse set of perspectives (including one view that “there is no such thing” as secret law).

In my own testimony (pdf), I provided a catalog of the many current forms of “secret law” and some of their objectionable consequences.

“If the rule of law is to prevail, the requirements of the law must be clear and discoverable,” I suggested. “Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability.”

The classification of the Office of Legal Counsel (OLC) memorandum of torture authored by John Yoo was “one of the worst abuses of the classification process I have seen during my career,” testified J. William Leonard (pdf), the former director of the Information Security Oversight Office.

More generally, “OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public,” said Prof. Dawn E. Johnsen (pdf), former head of the OLC, “particularly when advising the executive branch that in essence it could act contrary to federal statutory restraints.”

Current OLC director John P. Elwood (pdf) contended that current OLC disclosure policy “is consistent with the approach of prior Administrations.”

Brad Berenson (pdf), a former associate counsel to the President, articulated “legitimate interests in secrecy” and cautioned against disclosure initiatives that could have unintended consequences.

Prof. Heidi Kitrosser (pdf) explained the constitutional framework within which secrecy disputes take place and urged more “effective congressional oversight” to restrain abuses of secrecy.

Attorney David Rivkin, a frequent defender of Administration policies, said that the “law of war” paradigm with all of its attendant secrecy remains the appropriate one.

Sen. Sam Brownback expressed skepticism about new disclosure requirements, while Sen. Sheldon Whitehouse probed the destabilizing implications of the Administration view that executive orders can be “waived” by the President without notice to Congress or the public.

The prepared statements from the Senate hearing are available here.

For all of the differences of opinion, there was also a provisional consensus that the executive branch should be required to report to Congress when it significantly interprets or reinterprets a statutory requirement.

Chairman Feingold announced that the Office of the Director of National Intelligence had notified him that several long-sought opinions of the Office of Legal Counsel concerning interrogation of enemy combatants would be provided to the Senate Intelligence Committee and possibly, in some form, to the Senate Judiciary Committee. Sen. Feingold said he would continue to seek public disclosure of the opinions, a move that is not currently contemplated by the Administration.

No Responses to “Secret Law Debated in Senate Hearing”

  1. sherri April 30, 2008 at 11:03 PM #

    I commend your testimony,
    Thank You.

  2. Will May 5, 2008 at 12:56 PM #

    There are overriding and compelling reasons and purposes for Government secrecy. The presumption that all secrecy is malevolent, devious in nature and ill-advised is both childish and irresponsible.

    Viewing Government secrecy as a front for deviant behavior is a very superficial and ill-conceived notion at best and smacks of cheap hollywood theatrics designed to instill fear and distrust.

    Simply testifying before a slanted liberal and obviously pro-Aftergood group is no indication of any stamp of approval by the U.S. Government.

    It is no great shock or revelation to any thinking person that Mr. Aftergood has been, and will no doubt continue to be, an alarmist, who blindly pokes in the dark, hoping to gain personal notoriety by casting conspiratorial glances and whipping the flames of disinformation for his own self-serving purposes.

    Yes, there is a place for Government accountability, character, ethics and transparency to the extent that our national security and overall safety are not compromised. Take this disinformation and fear mongering to its logical extent, and you now have good old fashioned treason.

    The bane of open and democratic societies is that we are open and available to allow even those within our ranks to harm us from within.

    Nations, cities and real lives are in the balance, not just an individual’s perceived right to know that which he cannot.

  3. Nathanael Nerode May 11, 2008 at 7:46 PM #

    “There are overriding and compelling reasons and purposes for Government secrecy.”


    (1) Keeping the identities of spies secret.
    (2) Keeping tactical battle plans (troop movements and the like) out of the hands of the enemy, because surprise is important in battle
    (3) Keeping the design of certain weapons systems secret — those where the enemy would have difficulty copying them without the designs (but not those which are perfectly trivial to copy).

    These should be kept encrypted. And as a consequence, the cipher keys should be secret too.

    That’s *IT*. There is absolutely no other government business which can justifiably be kept secret for more than a few weeks. (Keeping things secret for a short period during negotiations is reasonable, but not for a long period. Privacy of private citizens is important, but the government shouldn’t even *know* about that sort of stuff, so it certainly has no justification to keep secret the fact that it does know stuff it shouldn’t.)

    That’s a *really short list*. It’s *so* short a list that only a short list of agencies — the ones involved in those three topics — should be even *allowed* to generate secret information. As an aside, only topic (3) should ever exist outside the government — (1) and (2) shouldn’t be contracted out, ever.

    The current practices of the Bush administration with secrecy have been, quite consistently, to make “secret” things which are either known or suspected by pretty much everyone — things where there is no value to keeping them secret whatsoever. Apart from that, they have been keeping “secret” the governmental commission of crimes which do not benefit the national security interest in any way. Like Abu Ghraib.

    I think “Will” has bought into the national security fantasy — the idea that we need people like Jack Bauer and James Bond to keep us safe. This is a nice movie conceit, but here in the hard-nosed real world, it just doesn’t work that way.

  4. Kim Wilson May 12, 2008 at 3:10 PM #

    The rule of law that no one is ignorant of the law? I see this as an issue so basic and fundamental that it is simply astounding to have to have a debate over the issue. Is this not reductio ad absurdum? Reduced to the absurd? How can law be secret?

  5. Dan May 14, 2008 at 10:24 PM #

    What Will should realize is that institutionalized secrecy contributes toward systemic abuses of the goverened. It does not matter if one or two members of the government are good or bad, the structural effects of unchecked secrecy inevitably corrode democracy over time. History proves this point quite well. Some specific types of information should be kept secret, with checks and balances by different branches. But when any branch of government decides that it is no longer required to obey the laws that it is sworn to uphold, our other branches of government, and us voting citizens, have a duty to preserve our freedom. Freedom does not preserve itself.