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How the Government Is Passing Secret Laws

By Sean Gonsalves, AlterNet. Posted May 19, 2008.


The government is undermining our rights by making laws in secret. Surprise, surprise.

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Once upon a time, a team of federal attorneys went before the Supreme Court only to discover that their entire case was based on a revoked executive order and therefore moot.

True story. Look it up. Panama Refining Company v. Ryan. The revoked presidential order was understandably missed by the attorneys. The revocation had never been made public -- an example of what legal scholars refer to as "secret law."

Cases like that caused Congress, in the '30s and '40s, to pen legislation aimed at bringing order to the dissemination of vital government information, amid the chaotic complexity of state administrative laws and downright shoddy record-keeping. Congress also established statutes to keep a growing body of secret law in check.

That's how we got the Federal Register Act of 1935, the Administrative Procedures Act of 1946 and the golden key to open government (and investigative reporting) -- the Freedom of Information Act (FOIA).

Those legislative acts exemplify one of the defining features of American government -- the publicizing of laws and regulations. The political philosophy isn't hard to understand. Secret laws are the antithesis of a free and open society, which explains why the first U.S. Congress mandated that every "law, order, resolution, and vote (shall) be published in at least three of the public newspapers printing within the United States."

But, never mind -- for the moment -- the decline of newspapers, and the harmful implications it has for democratic governance. Even more alarming is the underreported increase of unpublicized "secret laws," clandestinely cultivated in recent years.

We're talking everything from secret interpretations of the Foreign Intelligence Surveillance Act and opinions from the Office of Legal Counsel (OLC) to secret Presidential directives and transportation security orders.

And don't let the word "opinion" throw you off. If, for example, they're "opinions" issued by the OLC -- like the now infamous Yoo torture memos -- those kind of "opinions" are binding on the executive branch.

So, while the Washington press heavy-hitters were analyzing flag pins and pastors, a Judiciary subcommittee hearing was held on "Secret Law and the Threat to Democratic and Accountable Government".

Among the half-dozen or so witnesses to testify was the director of the Project on Government Secrecy at the Federation of American Scientists, Steven Aftergood -- one of the nation's preeminent authorities on secret law. What should have been a top-story across the country was rendered invisible by a tsunami of triviality.

Here's some testimony you probably missed:

"There has been a discernible increase in secret law and regulation in recent years" to the point where "legislative intervention" is required to "reverse the growth."

Unsurprisingly, secret law really became entwined with the government during the Cold War. But today, "secrecy not only persists, it is growing. Worse, it is implicated in fundamental political controversies over domestic surveillance, torture, and many other issues directly affecting the lives and interests of Americans."

The law that governs espionage activity has been re-interpreted by the FISA Court, the specific nature of which has not been disclosed to the public?

In August 2007, the American Civil Liberties Union petitioned the court on First Amendment grounds to make public those legal rulings, after redacting classified information. The court denied the ACLU petition, claiming it didn't have the expertise to decide what information should be redacted.


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See more stories tagged with: rights, law, government, secrecy

Sean Gonsalves is a syndicated columnist and news editor with the Cape Cod Times.

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View:
Secret law = no law
Posted by: Elmwood on May 20, 2008 6:04 AM   
Current rating: 5    [1 = poor; 5 = excellent]
As you said above, secret laws are the very antithesis of the government founded by our constitution. The "people" clearly did not delegate that authority to the federal government. There is a simple response to the issue of secret laws. Secret laws are unconstitutional. So in my opinion to have effect, any executive order or OLC opinion must be published, thus all orders and opinions of the Bush administration that have not been published, at least to all members of congress, are null and void.

Unfortunately, I am not on the supreme court. Those who are on the supreme court do not seem worried that a new president with radically different ideas from their favorite president might use the expanded presidential powers very differently. A new president's counsel could get busy writing opinions that would revise much current interpretation of law. An ERA amendment would be unnecessary if "all men" were taken to mean "all human beings" without exception. Even the supreme court's jurisdiction could be challenged with imaginative attorneys.

Perhaps the members of the court are not worried about a change in presidential attitudes because they know something the rest of us only suspect, which is that serious change won't be allowed to happen, not while voter suppression and direct electronic voting is allowed.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Waiting for the other shoe to drop
Posted by: Artkansas on May 20, 2008 1:54 PM   
Current rating: 5    [1 = poor; 5 = excellent]
It's hard to believe that Bush isn't planning something. He's worked to hard setting up his secret government to relinquish it to others. Now, he's singing and dancing looking so innocent. I just can't believe that he's lulling us into complacency to catch us more by surprise.

Deal or no deal.

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WTF?
Posted by: gradioc on May 20, 2008 6:00 PM   
Current rating: 5    [1 = poor; 5 = excellent]
What is truly astounding and saddening is that a private citizen is telling Congress what the Executive Branch is up to. It's all out there if you are paying attention. The military intrusion into domestic intelligence, the secret prisons, the private, corporate, standing army. I know what's happening. How the Hell do members of congress, with paid staffs and security clearances, know less than me?

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

» RE: WTF? Posted by: Dboy
» RE: WTF? Posted by: Doubting Thomas
» RE: WTF? Posted by: Alan8
WTF?
Posted by: gradioc on May 20, 2008 6:05 PM   
Current rating: 5    [1 = poor; 5 = excellent]
What is truly astounding and saddening is that a private citizen is telling Congress what the Executive Branch is up to. It's all out there if you are paying attention. The military intrusion into domestic intelligence, the secret prisons, the private, corporate, standing army. I know what's happening. How the Hell do members of congress, with paid staffs and security clearances, know less than me?

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

» RE: WTF? Sickofsleaze Perhaps Posted by: ladybug1@carrollsweb.com
» RE: WTF? Sickofsleaze Perhaps Posted by: aonghus36
sickofsleaze We get closer
Posted by: ladybug1@carrollsweb.com on May 21, 2008 3:30 AM   
Current rating: 5    [1 = poor; 5 = excellent]
to a police state every day, if we are not already there.
The judiciary is packed with Bush appointees who will still be on the bench for years to come which deprives us of any legal redress and we all know the tactics of the Bush administration to anyone who dares oppose them

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One more thing...
Posted by: beautifulady2003 on May 21, 2008 3:46 AM   
Current rating: 4    [1 = poor; 5 = excellent]
Just a piece of information not given in the article. The author mentions FOIA as giving journalists more access to information, which is true, but it should be mentioned that FOIA is not applicable to court records.

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» RE: Also that FOIA is no longer honored Posted by: beautifulady2003
» RE: Also that FOIA is no longer honored Posted by: beautifulady2003
Hope nobody here is surprised by this
Posted by: Dboy on May 21, 2008 4:33 AM   
Current rating: 3    [1 = poor; 5 = excellent]
ABC reported in March of this year that 2/3 of Americans think the Iraq war is not worth fighting. Cheney's response to this statistic was "So What?"

This government is out of control, and no longer serves the interest of the American people. And don't go off thinking that the 2008 elections will somehow fix things. Whoever gets elected has already been bought and paid for.

dboy

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USA/RIP
Posted by: JayHaden on May 21, 2008 6:48 AM   
Current rating: 5    [1 = poor; 5 = excellent]
The wages of adolescent victimhood, bullying and fantasy revenge are now being visited upon the USA. Once a preponderance of citizens in a democratic republic identify with the chug-a-lug, shoot-your-buddy-in-the-face-so-what crowd, that's who we elect to represent us. That is also who will be selected to provide advice and counsel to those we elect.

The blowback from our binge glorification of ignorance, incompetence, irresponsibility and mean spiritedness is a rebel/maverick/outlaw government that doesn't even know when it's smashing its own pumpkins -- the ones in which our country has been kept very well, thank you.

Being nice requires personal effort. Good-times bubbles defer that effort. For the past 15 years, Americans have been fed like geese on a diet of fat, oblivious to the foie gras ending that is around the corner. Be nice? I got mine. Let the rest eat my poop.

The bad news is that we are being "governed" by fearful children more interested in plotting revenge than trying to understand and empathize with those who might have slighted them in the past. All three branches of government are filled with immature humanoids who would punch a hole in the canoe just for the satisfaction of drowning their buddy. Do these people really represent us? Are we really like them? If so, the end is nigh.

Being open requires personal and social security. Somewhere in our reptilian political brains we yearn for an open society rather than the paranoia that caused Stalin to bump off 30-40 million of his compatriots. But that dim dream will have to wait until after the current crop of elected representatives gets even with us for being so nasty to them in grade school.

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» RE: USA/RIP Posted by: shelle621
» RE: USA/RIP Posted by: Walks-in-Storms
» RE: USA/RIP Posted by: Brooklynbrenda
Oh, my - where to start . . .
Posted by: Walks-in-Storms on May 21, 2008 8:20 AM   
Current rating: 4    [1 = poor; 5 = excellent]
First, a secret law is NOT a law. It is simply an order from a despot to inflict this or that action upon someone - someone unlikely unable to respond. Laws are enactments of legislatures - bodies provided by the people with the power to make law. Only with the aid of a news and information media - and a public fat-headed enough to accept it - does this kind of fiat acquire the stature of "law." More, there have been many, many "executive orders" - "laws" (orders) of this kind. Actually, this begins with a "law" that is so voluminous and incomprehensible that no one can understand or interpret it - uniformly or otherwise. The result, then, is that the government "interprets" does whatever it pleases. The example here, of course, is the Tax Code and its "interpreter," the IRS. When you consider it, most of U.S. law has become secret, interpretable only by the courts and a lawyer at expense the general public can't afford. I know all this because for twenty-three years, I faced it. I fought back the only way possible, using covert surveillance of state and federal officials to "get something" on them. I was obliged to fight alone because the public refused to raise a finger to help - as it always does when the government savages the rights of an individual or small group. How many officials have lost their jobs or been punished for things like Ruby Ridge, Waco, and literally hundreds more? Amadou Diallo? Dr. Sal Culosi? Sean Bell" Iraq? That's the reason we're in this pickle: a pubic who believes it can control government by just talking about it. Suck it up, folks - and don't mind me while I sit here with my knowing smile.

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The Bush executive is a black hole
Posted by: CJC on May 21, 2008 9:38 AM   
Current rating: 5    [1 = poor; 5 = excellent]
Everyone should read Jack Goldsmith's "The Terror Presidency." This self-described conservative quit after a less than a year as the head of OLC after John Yoo. He was the reason that the Yoo memos were withdrawn.

Goldsmith writes that David Addington, Cheney's deputy, is the face/voice/proponent of expanding executive power and resists every impulse to consult with Congress, much less inform the people directly.

It's not inefficiency, it's a deliberate and diabolical policy.

Will a new president (who many of us fervently hope will NOT be the hapless and right wing John McCain) undo some of the damage that's been done by the hyperconcentration of executive power? We should all keep his/her feet to the fire on this.

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[rant] bullying and government
Posted by: cyr3n on May 21, 2008 10:17 AM   
Current rating: 5    [1 = poor; 5 = excellent]
Don't you love how the subprime mortgage crises is blamed on the low-wage and elderly people who were suckered in by conmen? Here we are again.. full circle.. blaming the victims.

the problem is the prevailing tendency of administrative types to blame the victim. because he/she is 'wierd', outspoken, probably had it coming.. When the victim tries to take matters into their own hands.. they're punished worse than the bullies!

maybe. just maybe. laws arent working. What good would passing another law do? You really think some kid who's prepared to die and take a few schmucks with him is gonna care about your 'new rules'?

In the same vein, do you really think this government gives a rats ass what you think? The only thing keeping this system afloat is the happiness quotient of its people. As soon as the masses are feeling food-insecure (love that) and losing their homes the masses are going to rebel. and rightly so!

Our country is being usurped from under our feet! you can't even shit without paying a tax in some states. incomes are eroding and there's no job security anymore. people are dying of things that are preventable because they have no health insurance. people arent even marrying because they can barely support themselves.

the nerve of them to pass secret laws.. they are NOT the people. they were never FOR the people.

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Orkinizing the White House
Posted by: westomoon on May 21, 2008 11:50 AM   
Current rating: 4    [1 = poor; 5 = excellent]
I had no idea things were this bad -- but even before reading this, I'd been thinking that whoever comes into the White House in January will be inheriting a truly nightmarish can of Bush worms.

I'm a retired senior Fed, and here's what I think the new President will have to do to protect him/herself from the manifold crazinesses of the past 7 years: Immediately upon being sworn in, sign an Executive Order rescinding every EO, NSPD, OLC opinion, and Executive directive of any kind signed since 2001. That will eliminate some beneficial law as well as the malignant, but this could be the first constructive use of the old VietNam approach. You know, kill 'em all and let God (or the President) sort 'em out.

There is so much craziness, large and small, larded into the fabric of law and regulation at this point, along with so many people hired into the permanent Civil Service on the basis of their political credentials, that it would occupy a new President's whole first term just to find out what's there. Better just to bring in the Orkin man and fog the whole edifice, then restore what was useful out of the teeming ranks of cockroaches.

(grinning) If I'd known anyone on the Obama campaign, they would've gotten my plea for immediate Orkinization two months ago. Instead, here I am, opining on AlterNet with all my fellow crazies. Anybody know how to send a policy suggestion to a campaign?

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No Problem
Posted by: master09 on May 21, 2008 8:22 PM   
Current rating: 3    [1 = poor; 5 = excellent]
Vote for John McCain so that the republicians can continue to destroy this country as planned. Americans has about six months left with this so democracy; the same bunch of idiots will vote for republicians because obama did not wear a lapel pin, or Rev wright said"GODDAM america"what a bunch of idiots.

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Terrorifying
Posted by: leighsure on May 21, 2008 10:14 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Most anybody paying any attention would instinctively know that what Sean Gonsalves has to say is true - although we may not have the complete handle on all the facts of how we are DELIBERATELY being screwed over on a monumental scale (and it ain't those of justice). It's a real service to have the stats on how this is being brought about on one level that we only sometimes think about.
Only one published opinion in 2006? Are you f--ing kidding me? Can we write letters to editors to try stimulate media activity? Yes. Can we get the Presidential candidates grilled on their opinions and positions about the lack of published executive opinions and other forms of secret "laws" (Congressional "classified annexes" as well)? I really don't know, but don't you think it's worth putting some effort into? Please?

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It's so nice and warm with your head in the sand
Posted by: sicntired on May 21, 2008 10:33 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Till someone decides to mow the beach.GWB has shown he's capable of just about anything.It's just a delight sitting up in the frozen north watching his under study destroy the freedoms up here.Has anyone else noticed that the world is becoming a pretty scary place to be?

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This is OLD NEWS
Posted by: odcherenow on May 22, 2008 2:53 PM   
Current rating: 5    [1 = poor; 5 = excellent]
What short attention span spawned this blot on the blog-a-sphere?
This news surfaced at least a year ago with an investigation out of Boston and reported widely on NPR.

That it is still going on is no big brain phart.

This Shrub will give away the US shop before he and the rest of his Capitalist friends are through with us, the US taxpayers.

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» RE: This is OLD NEWS Posted by: desidid