The Danger Of Bush’S ‘Secret Law’

‘Secret law is not consistent with democratic governance’, said gov’t secrecy expert Steven Aftergood in recent congressional testimony. The Danger Of Bush’s ‘Secret Law’By Cliff Montgomery – May 13th, 2008The Senate Judiciary Committee held an April 30th hearing on “secret law”, those statutes, memos, etc., which certain administrations–especially the Bush White House–have completely classified under the claim of ‘executive privilege’.Below we offer instructive statements from the testimony of Steven Aftergood, spokesman of the Federation of American Scientists, a leading government secrecy watchdog group:“To state the obvious, secret law is not consistent with democratic governance. If the rule of law is to prevail, the requirements of the law must be clear and discoverable.”Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability. […]”From the beginning of the Republic, open publication of laws and directives was a defining characteristic. The first Congress of the United States mandated that every ‘law, order,  resolution, and vote [shall] be published in at least three of the public newspapers printed within the United States.'”Secret law in the United States also has a history, but for most of the past two centuries it was attributable to inadvertence and poor record keeping, not deliberate choice or official policy. […]” ‘The FOIA was designed as a means of deterring the development and application of a body of secret law’. [Providence Journal Co. v. Department of the Army, 981 F.2d 552, 556 (1st Cir. 1992).]”But with the start of the Cold War and the creation of the various institutions and  instruments of national security decision-making, secret law, directives and regulations became a continuing part of American government.”Today, such secrecy not only persists, it is growing. Worse, it is implicated in fundamental political controversies over domestic surveillance, torture, and many other issues directly affecting the lives and interests of Americans.FISA Court Opinions“Many of the concerns that arise from secret law are exemplified in the dispute over public access to judicial interpretations of the Foreign Intelligence Surveillance Act (FISA), the law that regulates domestic intelligence surveillance.”The ongoing political turmoil associated with amending the FISA was prompted by decisions made in 2007 by the Foreign Intelligence Surveillance Court, reinterpreting that law. Yet the specific nature of the Court’s reinterpretations is not reliably known. And so the current debate over amending the FISA proceeds on an uncertain footing.”In August 2007, the American Civil Liberties Union petitioned the Foreign Intelligence Surveillance Court (FISC) on First Amendment grounds to publicly disclose those legal rulings, after redacting them to protect properly classified information.”The ACLU noted that the contents of the requested rulings had been repeatedly referenced by Administration officials, including the Attorney General and the Director of National Intelligence, without identifiable harm to national security.”The material that the ACLU seeks consists not of factual information, but legal analysis. The ACLU seeks court records containing legal reasoning and legal rulings, and only to the extent they contain legal reasoning and legal rulings.”The Court denied the ACLU motion and asserted…that it lacked the expertise to declassify the requested records without undue risk to national security.”Nevertheless, in issuing its denial, the FIS Court…confirmed that [it]…has repeatedly generated binding new interpretations of the FISA statute.Office of Legal Counsel Opinions“The Office of Legal Counsel at the Justice Department produces opinions on legal questions that are generally binding on the executive branch.”Many of these opinions may be properly confidential. But others interpret the law authoritatively and in ways that are reflected in government policy.”Yet most of these opinions are secret, so that the legal standards under which the government is actually operating at any given moment may be unknown to the public.Reversible Executive Orders“One secret OLC opinion of particular significance, identified last year by Senator Whitehouse, holds that executive orders, which are binding on executive branch agencies and are published in the Federal Register, can be unilaterally abrogated by the President without public notice.”Because many executive orders are partly rooted in statute or reflect statutory imperatives, this approach has the potential to subvert Congressional intent, and to do so secretly.Secret Presidential Directives“By late January 2008, the Bush Administration had issued 56 National Security Presidential Directives (NSPDs) on many diverse national security topics. […]”Such national security directives are a vexing instrument of executive authority, since they often combine significant national policy initiatives with unwavering secrecy. They ‘commit the Nation and its resources as if they were the law of the land’ and yet in most cases ‘they are not shared with Congress’ or the public. [Relyea, “The Coming of Secret Law,” op.cit., p. 108.][…] “Because the President is not subject to the Freedom of Information Act, the public is dependent on the good graces of the Administration for access to many of these records.”Like what you’re reading so far? Then why not order a full year (52 issues) of thee-newsletter for only $15? A major article covering an story not being told in the Corporate Press will be delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!