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.