Wednesday, April 30, 2008

It's SECRET! Forget the Rule of Law....

From Secrecy News:


Secret law that governs the conduct of government activities but is
inaccessible to the public is "a particularly sinister" phenomenon that
is "increasingly prevalent," said Senator Russ Feingold today at a
hearing of the Senate Judiciary Committee Subcommittee on the

The hearing produced a particularly rich record on the subject of
secret law from a broad and diverse set of perspectives (including one
view that "there is no such thing" as secret law).

In my own testimony, I provided a catalog of the many current forms of
"secret law" and some of their objectionable consequences.

"If the rule of law is to prevail, the requirements of the law must be
clear and discoverable," I suggested. "Secret law excludes the public
from the deliberative process, promotes arbitrary and deviant
government behavior, and shields official malefactors from

The classification of the Office of Legal Counsel (OLC) memorandum of
torture authored by John Yoo was "one of the worst abuses of the
classification process I have seen during my career," testified J.
William Leonard, the former director of the Information Security
Oversight Office.

More generally, "OLC has been terribly wrong to withhold the content of
much of its advice from Congress and the public," said Prof. Dawn E.
Johnsen, former head of the OLC, "particularly when advising the
executive branch that in essence it could act contrary to federal
statutory restraints."

Current OLC director John P. Elwood contended that current OLC
disclosure policy "is consistent with the approach of prior

Brad Berenson, a former associate counsel to the President, articulated
"legitimate interests in secrecy" and cautioned against disclosure
initiatives that could have unintended consequences.

Prof. Heidi Kitrosser explained the constitutional framework within
which secrecy disputes take place and urged more "effective
congressional oversight" to restrain abuses of secrecy.

Attorney David Rivkin, a frequent defender of Administration policies,
said that the "law of war" paradigm with all of its attendant secrecy
remains the appropriate one.

Sen. Sam Brownback expressed skepticism about new disclosure
requirements, while Sen. Sheldon Whitehouse probed the destabilizing
implications of the Administration view that executive orders can be
"waived" by the President without notice to Congress or the public.

The prepared statements from the Senate hearing are available here:

For all of the differences of opinion, there was also a provisional
consensus that the executive branch should be required to report to
Congress when it significantly interprets or reinterprets a statutory

Chairman Feingold announced that the Office of the Director of National
Intelligence had notified him that several long-sought opinions of the
Office of Legal Counsel concerning interrogation of enemy combatants
would be provided to the Senate Intelligence Committee and possibly, in
some form, to the Senate Judiciary Committee. Sen. Feingold said he
would continue to seek public disclosure of the opinions, a move that
is not currently contemplated by the Administration.


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