There’s No Reason to Hide the Amount of Secret Law

Last week, President Obama announced a new policy that would allow private parties to pay ransoms to hostage takers. The policy was established through an executive order and an accompanying presidential policy directive issued under the number “PPD-29.” Quickly, however, the White House corrected the number to “PPD-30” — revealing that a secret directive had been issued at some point between January 2014, when PPD-28 was made public, and now.

Presidential policy directives have the same legal force as executive orders. Unlike executive orders, however, they are not published in the Federal Register. If undisclosed, they constitute a form of “secret law”: authoritative pronouncements or interpretations that establish legal rights or responsibilities but are withheld from the public. As USA Today reported, President Obama has issued 30 such orders. Nineteen remain undisclosed; for 11 of these, not even the subject matter is known.

As disturbing as this may be, what’s unusual about this story is not the fact that authoritative statements of law are being kept secret. It’s the fact that, due to the practice of numbering presidential orders and directives, we know they are being kept secret.

We are rarely so well-informed when it comes to the myriad other types of secret law that increasingly govern national security policy. Take, for example, opinions of the Justice Department’s Office of Legal Counsel (OLC). When responding to Freedom of Information Act (FOIA) requests, DOJ is fond of referring to these opinions as “deliberative” (a designation that shields them from disclosure). In fact, unless overruled by the President or by a court, these legal interpretations are binding on the executive branch.

OLC publishes some of its opinions, but others remain unpublished and functionally unavailable through FOIA. Some of the unpublished opinions are classified. There are lists of unclassified opinions that can themselves be obtained through FOIA, and enterprising advocates have been able to deduce from these lists the number of unclassified opinions whose contents are not public. These lists notably exclude classified opinions, however, so there is no way for the public to know how many OLC opinions are kept secret based on claims of national security.

Another example is the opinions of the Foreign Intelligence Surveillance Court (FISC). Traditionally, these opinions have been classified and withheld from the public; before 2013, the court and its appellate body had published only three opinions. Since Snowden’s disclosures, the Director of National Intelligence (DNI) has partially declassified several previously-issued opinions, and the FISC has published some of its recent opinions, having clearly written them with an eye toward public release. The FISC now maintains a docket of “public filings.”

Administration officials have touted such efforts to increase transparency. But there is no way to determine how many pre-Snowden opinions remain classified. The post-Snowden existence of a partial docket enables educated guesses about missing filings (such as Patrick Toomey’s identification of a possible CIA bulk collection application), but not a comprehensive and accurate accounting. Claims of executive transparency are thus impossible to assess because they rest on a numerator for which the denominator is unknown. In a January 2015 report, the Privacy and Civil Liberties Oversight Board noted that “[t]he government has not publicly released any newly issued FISC decisions, orders, or opinions relating to surveillance matters beyond the telephone records program,” suggesting that the current disclosures are quite selective.

While the USA Freedom Act should improve matters by requiring the executive branch to publicly release significant FISC opinions (in redacted or summarized form if necessary), the executive branch decides which opinions qualify as “significant.” It is not too far-fetched to imagine that officials might creatively interpret “significance” to avoid the disclosure requirement in cases they view as particularly sensitive. In any case, the public will be left to speculate about how much law remains secret because the government labels it insignificant.

Some officials have argued that legal analysis and sensitive facts of intelligence operations are inextricably entwined in documents such as OLC and FISC opinions; the government can’t disclose the former without revealing the latter. Disentangling these elements may indeed be difficult in some instances (although that’s unlikely to be true for presidential directives, which establish general policy rather than applying the law to specific cases). Nonetheless, creative solutions to the problem of blended law and fact — such as the summaries contemplated by USA Freedom — are possible if there is sufficient will to find them.

In the meantime, there should be no barrier to giving the public the information it needs to understand the scope of secret law. The Justice Department should make public the total number of OLC opinions — classified and unclassified — issued each year, as well as the total number published. The DNI should disclose the number of FISC opinions that have not been released. Better yet, the DNI should compile and make public a true docket that lists each FISC opinion — with descriptive elements redacted, where such information is properly classified — and indicates whether the executive branch deems it “significant”; whether it has been publicly released, and when; and, if there has been no public release, whether it is currently undergoing declassification review, has already undergone declassification review and was not declassified, or has not been reviewed. It would look something like this:

Sample-FISC-Disclosure

Whether the government may keep some legal interpretations secret from the public is a debate that is certain to continue for some time. But there is no justification for keeping the public in the dark about how much secrecy exists. After all, we’re no less safe as a nation for knowing that there’s a PPD-29, and we’re able to have an informed discussion about whether too many presidential directives are kept secret. We should be able to have the same informed discussion about OLC memoranda, FISC opinions, and other manifestations of secret law. 

About the Author(s)

Elizabeth Goitein

Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, Former Counsel to Sen. Russ Feingold Former Trial Attorney in the Federal Programs Branch of the Civil Division of the Department of Justice You can follow her on Twitter (@LizaGoitein).