It’s Time to Come to Terms With Secret Law: Part I

Secret law. The words are chilling. They evoke Kafka, unaccountable government, liberty subordinated to state security – and to some ears, perhaps simply the paranoid rantings of tinfoil hat wearers. But the claim that the US government is creating secret law has become increasingly common and credible, levied by scholars, secrecy critics, courts, and by lawmakers and government officials of both parties.

Pieces of the secret law puzzle have garnered attention. For example, the claim of secret law has been most famously levied in recent years against classified opinions of the Foreign Intelligence Surveillance Court (FISC) and against classified or otherwise unreleased Justice Department Office of Legal Counsel (OLC) opinions on interrogation, surveillance, and detainees (during the George W. Bush Administration) and targeted killings (during the Obama Administration). Also, each of the three branches of government have decried individual examples of alleged secret law produced by the others, and tried to regulate it, one instance at a time.

Missing from the conversation has been the full picture. Published analysis and government action have not grappled wholistically and in depth with alleged secret law as a general phenomenon – descriptively (is each branch truly producing secret law, including Congress?), normatively (what are our relevant values and potential options?), and prescriptively (what should be done?).

For this reason, I recently analyzed this general claim of secret law’s advent, examining available public evidence in all three branches. I conclude that secret law does exist in our republic. It is a limited but problematic and under-appreciated exception to our general constitutional norm of the law’s publication. Indeed, it is more widespread than critics allege. Secret law is a general phenomenon, and we need to come to terms with it as such.

In using the term “secret law” I do not mean to imply anything nefarious is afoot. I simply mean that there is a body of law that meets the definition: legal authorities that require compliance that are classified or otherwise unpublished.

In this, the first of two posts exploring secret law, I summarize my findings in each branch, and explain why secret law is a special problem distinct from secrecy generally.  In the next, I’ll turn to the way ahead, identifying values, arguments, and options, and recommending rules of the road if the republic decides to live with some amount of secret law.

Secret Law in the Three Branches

Everyone will agree that some amount of secret fact is inevitable: secret communications, diplomacy, plans, operations, weapons systems, and intelligence sources and methods. Public officials and their lawyers also need deliberative space away from the bright lights to consider non-public information, develop legal theories, and think through sensitive decisions. Secret law, in contrast, is not inevitable. Rather, it is a practical response in all three branches to the dilemma of how to bring the rule of law to activities that honorable public officials believe must not be made public.

Legislative Branch.

The most under-appreciated part of the secret law phenomenon is the role played by Congress. Evident here is one of US secret law’s ironies: secret law arose in Congress (and the courts – see below) with the purpose of reigning in the national security apparatus, not expanding it.

As I explained in depth recently at Lawfare, my empirical study shows that in the wake of the intelligence abuses documented by the Church-Pike Committees in the 1970s, for nearly four decades now Congress has been passing three annual national security bills – the Intelligence Authorization Act (IAA), National Defense Authorization Act (NDAA), and Department of Defense Appropriations Act (DODAA) – that put the force of law behind classified legislative addenda. Usually these addenda are called classified schedules or annexes, appended to committee reports. The statutes say, in effect, that the law is found in separate classified documents, in a safe, in a secure room.

How common is this practice? Over 36 years, Congress passed 68 statutes containing 124 provisions that can reasonably be read to say that the law is found in 94 classified legislative addenda. Most of these 124 congressional secret laws facially appear to concern intelligence funding, personnel, and programs – to include surveillance, covert action, and lethal drone operations. The public record also suggests that Congress has used the classified addenda to regulate Pentagon programs outside of the intelligence context.

Beyond the numbers (which have been sharply rising) and the limited explanations in the public record, the scope and exact content of Congress’s classified legislation is not publicly known. Congress is exempt from the Freedom of Information Act (FOIA), and no classified addendum has ever been declassified or leaked.

Executive Branch.

The largest branch has been the most longstanding target of allegations of secret law. Half a century ago, charges of “secret law” levied against unpublished agency rules, guidelines, and rulings contributed to enactment of FOIA. The courts have recognized Congress’s intent in FOIA and the Administrative Procedures Act (APA) in surfacing secret law. However, these framework statutes carry strong national security exemptions. The state secrets, executive, deliberative process, and attorney-client privileges, and the political question doctrine, often keep Executive Branch secret law buried as well.

Today, the best known example of Executive Branch secret law is OLC memoranda. They meet the definition: they are the precedential, binding “law of the Executive Branch” and many are classified, or unclassified but unpublished. Based on the public record, we know that a fuller taxonomy also includes at the White House level classified annexes and potential secret amendments to Executive Orders, and classified directives such as Presidential Policy Directives. At the agency level, other examples include unpublished regulations, rules, directives, guidelines, interpretations, rulings, and also manuals and handbooks that function as agency working law.

Today, the Executive Branch is not required to inform the public – or Congress – of even the basic matter of how much secret law exists. Other questions on which there is relatively little or no reliable public information include: How often is Executive Branch secret law created? By whom? What subjects does it cover? How much is still good law, in view of change in law and fact over time? What exactly is the law on subjects where there is secret law, considering all public law and all secret law?

Note also that legal force inertia plus secrecy together mean that the next presidential administration will not be required to review, much less deliberately and publicly take ownership of, the secret law it inherits. The President and agency officials can invoke, change, or cancel Executive Branch secret law at any time, without public notice.

The Executive Branch’s secrecy incentives are powerful. It uniquely has massive size, classification authority, and operational responsibility for sensitive diplomatic, military, intelligence, law enforcement, economic, and other national security activities. The world and the Article II branch’s personnel continually generate new sensitive situations in which law needs to be applied to fact.

Because it alone has both regulatory power and personnel in the field, the Article II branch in the legal arena is uniquely capable of the most problematic kind of secrecy. This is deep secrecy: creation of secrets that are not only secret in substance but their entire existence as well is a secret. (Shallow secrecy in contrast is where the secret’s content is unknown but its existence is). The Executive Branch can write secret law for itself and carry it out, without giving any hint that a secret law has been created. This short-circuits the ability of the people to consent or ask for the law to be changed. Congress has been kept in the dark, too. The Executive Branch is legally obligated to share its secret law with Congress only in a few situations (such as informing Congress of the legal basis of intelligence activities), short-circuiting the Constitution’s shared powers structure and checks-and-balances lawmaking process. It was these unique deep secrecy-allowing structural circumstances that enabled the George W. Bush Administration OLC (whatever the honorable subjective intents of those involved) to engage in what was functionally legal authority self-dealing. OLC in secret and without review of its highly questionable legal reasoning by other branches aggressively reconstructed the law regarding interrogation, surveillance, and detainees to evade well-known restrictions in statutory, constitutional, and international law, to grow Executive power, and to shield its personnel from criminal liability.

Any administration could do it again. The total number and substantive reach of secret presidential directives, unpublished OLC opinions, classified agency regulations, and other Executive Branch secret legal authorities remain unknown to Congress, the courts, and public.

In contrast, secret law creation by the other two branches cannot be deeply secret. When Congress and the Foreign Intelligence Surveillance Court (FISC) write secret law they automatically share it with other branches in classified form, and inform the public that a secret law has been created. For several reasons: the primary purpose of congressional and FISC secret law is to regulate the Executive Branch, so it must be shared inter-branch; the FISC is legally required to report its classified opinions to Congress; and, Congress and the FISC – respectively – provide public notice of their creation of secret law in the form of Congress’s statutory references to classified legislative addenda and in the form of the USA Freedom Act’s year-old requirement for publication of declassified, redacted, or summarized versions of FISC constructions of law (the FISC also now has an online docket of public filings).

Judicial Branch.

The FISC was created in the Constitution’s Article III branch by Congress at the same time Congress started writing secret law in the late 1970s. A companion to the advent of Congress’s classified legislative addenda was passage of the Foreign Intelligence Surveillance Act (FISA) of 1978.

We now know that in the years after 9/11 – first at the urging of the Executive Branch and later at the direction of Congress – the FISC went beyond issuing short, particularized classified surveillance warrants that looked much like sealed criminal surveillance warrants and began authorizing bulk collection elements of the former Stellarwind program. Through this program, the National Security Agency (NSA) collected electronic communications content and records of foreign and US persons without a particularized warrant. Once brought under FISC supervision, the secret surveillance court blessed aspects of Stellarwind through long opinions that did complex statutory and constitutional analysis, effectively creating a body of classified common law. In particular, due to Edward Snowden’s leaks and a series of unprecedented declassifications, in 2013 the public learned that the FISC had endorsed the Executive Branch’s aggressive reconstruction of the USA Patriot Act’s business records provision (Sec. 215) to treat essentially anyone’s phone records as “relevant” to terrorism investigations and authorize suspicionless bulk collection every day by the NSA.

Last year’s USA Freedom Act was a response to criticism of the FISC’s reasoning once revealed – and was billed by its sponsors as an effort to “end secret laws.” Among other reforms, statute now requires public notice of new FISC legal interpretations. Note, however, that the USA Freedom Act is not a full fix. Its requirement of publication of a full declassification, redaction, or summary of the FISC’s secret law can still allow legal analysis in the opinions to remain unpublished. The untold number of pre-Freedom Act opinions are not being published at the same rate. The new statute also does not end secret law in the Legislative or Executive Branches, nor address the other examples of arguable secret law in the courts I mention in my article.

Secret Law vs. Secret Fact

It is now clear that secret law is a three-branch phenomenon. But how is it any different than the colossal amount of regular government secrecy about which we have long known? Put a different way, were the tens of thousands of classified State Department cables leaked by Chelsea Manning meaningfully different than the classified law leaked by Edward Snowden? Usually, no distinction is drawn between secret fact and secret law. For example, Executive Branch agencies and courts usually do not look beyond FOIA’s blanket exception of classified documents to surface legal authorities. Other participants in the secrecy conversation do draw a distinction, arguing that secret operational details are properly withheld but the rules must be published.

I argue that secret fact and secret law are importantly different: we can tolerate more secrecy about facts than we can about law.

A law has power to obligate, empower, and govern in a way a piece of data or other fact (“what Putin had for breakfast”) simply does not. Law embodies the sovereign right of the people to make their own rules. Law implicitly demands publication so that the people can determine the rules under which they live and their government operates. One philosophical perspective says, accordingly, that a non-published law cannot ever really be a law. Another line of thought is that a non-public law might still be legitimate if it could withstand public scrutiny if revealed, and is kept a shallow secret: the public knows of and consents to its existence, but the details of the rule are secret to prevent the law’s purposes from being frustrated. Examples might be the detailed operational rules for a surveillance method or a covert action, or in the domestic realm the effective date of price controls.

These philosophical considerations resonate in US constitutional norms. Surveying our constitutional history, it is clear that the norm against secret fact is not as strong as it is against secret law. Our government’s default is openness. But the exception for national security, in particular, is enormous and longstanding. The national security apparatus is the largest part of the US government in terms of personnel and discretionary spending, and its default for communications, plans, and operations is secrecy. Our constitutional system has become comfortable with massive secrecy about facts, and yet has only permitted the limited universe of secret law outlined above. Based on the public record, we can be confident that the amount factual information in classified documents dwarfs the amount of law.

Understanding that there is some limited philosophical and constitutional normative space for secret law does not answer the questions of whether the republic should tolerate some secret law, or how. In my next post I will suggest a framework for grappling with these questions. 

About the Author(s)

Dakota S. Rudesill

Assistant Professor of Law at the Moritz College of Law at The Ohio State University