Court Rebukes Government Over “Secret Law”

07.20.09 | 2 min read | Text by Steven Aftergood

“Government must operate through public laws and regulations” and not through “secret law,” a federal appellate court declared in a decision last month.  When our government attempts to do otherwise, the court said, it is emulating “totalitarian regimes.”

The new ruling (pdf) overturned the conviction of a defendant who had been found guilty of exporting rifle scopes in violation of the International Traffic in Arms Regulations (ITAR).  The court said that the government had failed to properly identify which items are subject to export control regulations, or to justify the criteria for controlling them.  It said the defendant could not be held responsible for violating such vague regulations.

Accepting the State Department’s claim of “authority to classify any item as a ‘defense article’ [thereby making it subject to export controls], without revealing the basis of the decision and without allowing any inquiry by the jury, would create serious constitutional problems,” wrote Chief Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals.  “It would allow the sort of secret law that [the Supreme Court in] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), condemned.”

Normally, “A regulation is published for all to see,” explained Judge Easterbrook, a Reagan appointee who is considered a judicial conservative.  “People can adjust their conduct to avoid liability.  [In contrast,] a designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian regimes,” he said.  See the Court’s ruling in United States of America v. Doli Syarief Pulungan, June 15, 2009.

The new ruling “could be a very big deal in terms of export controls, and indeed in terms of ‘secret law’ in general,” said Gerald Epstein, a science and security policy scholar who served on a recent National Academy of Sciences panel on export control policy.  “This case goes to the heart of the ambiguity of the International Traffic in Arms Regulations, which give the State Department great latitude in determining what is and what is not covered, and which are administered in a notoriously opaque way,” Dr. Epstein told Secrecy News.

Export control policy was addressed from various perspectives in an April 24, 2008 Senate hearing entitled “Beyond Control: Reforming Export Licensing Agencies for National Security and Economic Interests” (pdf) that was published last month.

Last year, Sen. Russ Feingold convened a hearing on the subject of “Secret Law and the Threat to Democratic and Accountable Government.” My prepared statement from that hearing on the diverse categories of secret law is available here (pdf).