Controlling Through Secrecy
“A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
former U.S. President James Madison, 1822 _____________________________________________________________________________________
“More than any other Administration in recent history, this Administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits. It has relied increasingly on secret evidence and closed tribunals,not only in Guantanamo but here in the United States. And it has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress. .....
“The notion of ‘secret law’ has been described in court opinions and law treatises as ‘repugnant’ and ‘an abomination.’ It is a basic tenet of democracy that the people have a right to know the law.
“The Administration’s shroud of secrecy extends to agency rules and executive pronouncements, such as Executive Orders, that carry the force of law. Through the diligent efforts of my colleague Senator Whitehouse, we have learned that OLC has taken the position that a President can ‘waive’ or ‘modify’ a published Executive Order without any notice to the public or Congress – simply by not following it.
“Now, none of us disputes that a President can withdraw or revise an Executive Order at any time; that’s every President’s prerogative. But abrogating an Executive Order without any public notice works a secret change in the law. Worse, because the published Order stays on the books, it actively misleads Congress and the public as to what the law is. That has the effect – presumably, the intended effect – of derailing any accountability or oversight that could otherwise occur.
“And that gets us to the heart of the problem. In a democracy, the government must be accountable to the people, and that means the people must know what their government is doing. ....
"An executive branch that operates pursuant to secret law makes a mockery of the democratic principles and freedoms on which this country was based."
Senator Russ Feingold, Before the Senate Committee on the Judiciary Subcommittee On The Constitution, April 30, 2008
"[L]aws that are created, defined, or interpreted in secret might as well not exist. Secret law is not a check on the government; when law is kept secret, the rule of law suffers.
"This administration has, for years, set out to shield itself from constraint and accountability by employing unprecedented secrecy. Key members of this administration have long held the view that when it comes to national security the President should not be encumbered by laws, the Congress, or the courts.
".... If an OLC opinion interprets the law in a way that permits action that Congress believes is or should be illegal, Congress should know. Congress writes the laws. If the Executive is not “faithfully executing” the law but wrongly interpreting or implementing them, Congress needs to call the Executive to task through oversight or, in the extreme case, to amend the law to reiterate its intention and clarify the law’s meaning. Obviously an opinion kept secret from Congress makes that impossible.
"The perversion of OLC is only one aspect of this administration’s problem with secret law. They have distorted claims of executive privilege beyond recognition in order to keep Congress in the dark and have overused claims of the state secrets privilege to avoid review by the courts. They have used presidential signing statements to obscure rather than clarify the law, as I have said to sign the law with one hand but to keep the other behind the President’s back with his fingers crossed. They have manipulated the classification system, which is designed to protect national security, using it instead to shield their misdeeds and flawed legal analysis.
"We see the disastrous effects of this secret law all around us today."
Senator Patrick Leahy, Before the Senate Committee on the Judiciary Subcommittee On The Constitution - April 30, 2008
Secret Law and the Threat to
Democratic and Accountable Government
Secret Laws, Secret
Courts, Secret Constitution
(From the ACS Blog)
On Secrecy and Transparency: Thoughts for Congress and a New Administration
An ACS Issue Brief by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago School of Law.
A sobering examination of the actions of the executive branch in the wake of the 9/11 attacks.
Security Without Secret Laws: How Other Nations Balance National
Security Interests and Transparency of the Law
An ACS Issue Brief by Sudha Setty, Associate Professor of Law, Western New England College School of Law
||Reforming the States Secrets
An ACS Issue Brief by
Amanda Frost, Associate Professor of Law, American University Washington College of Law
Justin Florence, Nonresident Fellow, Georgetown Center on National Security and the Law.