Despite Post-Snowden Outcry, Report Details 'New Era of Secret Law'

In the wake of 9/11, the U.S. government began creating what has now become an "unprecedented buildup" of secret laws, and even the recent public backlash against them has not stopped widespread use of covert rules that impact Americans' everyday lives without their knowledge, according to a new report from the Brennan Center for Justice.

The Department of Justice has kept classified at least 74 legal memos, opinions, and letters issued by the department's Office of Legal Counsel (OLC) from 2002 to 2009 on national security issues--from torture to mass surveillance--according to the report, The New Era of Secret Law (pdf), written by Elizabeth Gotein, co-director of the center's Liberty and National Security Program.

And the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence collecting activities, is also hiding 25 to 30 opinions issued between 2003 and 2013 "that were deemed significant by the Attorney General." In fact, most of the significant case law written before National Security Agency (NSA) whistleblower Edward Snowden's 2013 revelations remains undisclosed.

Fully 42 percent of binding agreements between the U.S. and other countries are also unpublished, the report finds.

The Washington Postspoke with Yale University international law professor Oona Hathaway, who said that number was "pretty stunning."

The only legal groundwork for secret laws that regularly makes headlines are FISA and OLC opinions, Gotein notes. But there are other government entities that make law, and the increase of surveillance operations is a "potent force" behind the scenes. So where else is it occurring and how common is it?

"In the realm of national security, where Congress tends to tread lightly, other sources of law predominate," Gotein writes for an op-ed in the New York Times.

For example, the Administrative Procedure Act (APA) requires agencies to invite public comment for proposed rules, while FOIA requires them to publish final rules in the Federal Registry. But intelligence agencies "routinely" exploit a narrow exception to those requirements to avoid having to publish new rules, Gotein says. And most presidential directives regarding national security policy are kept hidden as well.

All this means "[s]ecret law persists even in areas where we thought the secrecy had ended," she writes.

Gotein continues:

We pay a high price for this system. Secret law denies us the ability to shape the rules that govern official conduct through the democratic process. It prevents us from holding the government accountable for violations, rendering such violations more likely. It weakens checks and balances, as both legislative and judicial oversight operate less effectively under the constraints imposed by secrecy.

Secret law is also bad law: When rules are developed by small groups of officials without the input of outside experts or stakeholders, their quality suffers. Indeed, an inherent conflict of interest exists when the executive branch enacts laws out of the public eye to govern its own actions. This can result in policies that are ineffective, ill advised, or even contrary to statutes or the Constitution.

However, she notes, there has been some recent progress to rein in secret law, such as a 2015 ruling requiring more transparency in FISA rulings.

"These changes are proof of concept, as the law in these areas has become far more accessible without harm to national security. We should now build on this progress," she writes.

The report makes six recommendations to reform the prevalence of secret law throughout the government, including:

• Using an already-existing inter-agency body of senior officials to make decisions on legal rules and interpretations
• Making the standard for keeping laws secret more stringent than the current standard
• Designating certain categories of law as ones that should never be kept secret, such as pure legal analysis containing no sensitive facts, and legal interpretations that aim to exempt government agencies from compliance with statutes
• Requiring the executive branch to immediately share new secret laws with other independent oversight bodies
• Placing a four-year time limit on secret law and allowing no more than two renewals total
• Creating a public database that lists all the information on secret rules and interpretations that can be made available

"Together, these reforms could help ensure that the law is withheld from the public only when the risk to national security outweighs countervailing harms," the report states. "But we must be vigilant, as secrecy in government is notoriously difficult to contain.... The time has come to move past the modern era of secret law and return to the nation's historical commitment to legal transparency."