The Central Intelligence Agency's torture of detainees, and the National Security Agency's warrantless wiretapping of Americans' international communications, were two of the most controversial programs our government implemented after Sept. 11. Both are now widely considered to have been illegal, even though both were authorized by official legal analyses that were withheld from the public — a phenomenon known as "secret law."
The notion of secret law is as counterintuitive as it is unsettling. When most of us think of law, we think of statutes passed by Congress, and we take for granted that they are public.
Statutes, however, are only one kind of law. When the secret surveillance panel known as the Foreign Intelligence Surveillance Court, or FISA court, construed the Patriot Act to allow bulk collection of Americans' phone records, that interpretation became part of the statute's meaning. When President Obama issued procedures and standards for using lethal force against suspected terrorists overseas, agency officials were bound to follow them.
In the realm of national security, where Congress tends to tread lightly, other sources of law predominate — and a new study by the Brennan Center shows that they are frequently withheld from the public. Intelligence agencies routinely issue rules and regulations without publishing them in the Federal Register, exploiting what are intended to be narrow exceptions to the publication requirement. Most presidential directives addressing national security policy are not made public. Documents released by the State Department in litigation reveal that 42 percent of binding agreements between the United States and other countries are unpublished.
Secret law persists even in areas where we thought the secrecy had ended. Although President Obama is often credited for releasing controversial memos written by the Justice Department's Office of Legal Counsel under the Bush administration — such as the infamous "torture memos" — new data show that at least 74 O.L.C. opinions from 2002 to 2009 on national security issues, including intelligence gathering and the detention and interrogation of suspected terrorists, remain classified. Similarly, despite the disclosure of many FISA court opinions following Edward Snowden's revelations, new information from the Justice Department indicates that about 30 significant opinions remain secret.
We pay a high price for this system. Secret law denies us the ability to shape the rules that govern official conduct through the democratic process. It prevents us from holding the government accountable for violations, rendering such violations more likely. It weakens checks and balances, as both legislative and judicial oversight operate less effectively under the constraints imposed by secrecy.
Secret law is also bad law: When rules are developed by small groups of officials without the input of outside experts or stakeholders, their quality suffers. Indeed, an inherent conflict of interest exists when the executive branch enacts laws out of the public eye to govern its own actions. This can result in policies that are ineffective, ill advised or even contrary to statutes or the Constitution.
In theory, congressional oversight should stand in for public scrutiny. But the system breaks down in practice. Executive officials sometimes refuse to provide legal interpretations to oversight committees. Even when they have access, lawmakers often fail to push back against interpretations that go too far. After all, they have little incentive to take on the national security establishment when their constituents are not even aware that a problem exists.
The costs imposed by secret law are for the most part unjustified. National security frequently requires secrecy in the details of intelligence or military operations. Rules and regulations, however, establish general standards for conduct; they do not normally include details like dates, times, targets or sources. As for opinions that apply the law in specific cases, if their authors anticipated disclosure, they could write in a manner that minimized the entanglement of law and fact. The sensitive information could then be redacted without obscuring the legal analysis.
There have been recent notable steps to rein in secret law. In 2015, Congress passed a law requiring more transparency in FISA court opinions, and the office of the director of national intelligence has published all of its "Intelligence Community Directives" online. These changes are proof of concept, as the law in these areas has become far more accessible without harm to national security.
We should now build on this progress. Decisions about what can be kept secret should be made by an interagency group rather than a single official. The standard for secrecy should be more specific and more demanding than the current, vague yardstick of potential harm to national security. Agencies should maintain public indexes, including certain basic information about each secret law, to enable challenges and an assessment of how the system is working. And there should be a firm limit on how long any law may remain secret. The president should order these changes, with Congress conducting public oversight to ensure their faithful implementation.
These reforms might not end secret law altogether. But they would help ensure that secret law was the exception, not the expectation, in national security matters. In this election year, as we honor our right to govern ourselves, those in power and those seeking it should affirm that a regime of secret law has no place in a democracy.