How the Government Is Passing Secret Laws

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.

The denial was issued despite it being evident "that there is a body of common law derived from the decisions of the (FISA court) that potentially implicates the privacy interests of all Americans. Yet knowledge of that law is deliberately withheld from the public. In this way, secret law has been normalized to a previously unknown extent and to the detriment, I believe, of American democracy," Aftergood testified.