Secret Law and the Threat to Democratic and Accountable Government

[kpete]

Testimony
United States Senate Committee on the Judiciary
Secret Law and the Threat to Democratic and Accountable Government
April 30, 2008
Statement of Steven Aftergood

Summary

Secret law that is inaccessible to the public is inherently antithetical to democracy and foreign to the tradition of open publication that has characterized most of American legal history. Yet there has been a discernable increase in secret law and regulation in recent years. This testimony describes several of the major categories of secret law,
including secret interpretations of the Foreign Intelligence Surveillance Act, secret opinions of the Office of Legal Counsel, secret Presidential directives, secret transportation security directives, and more. Legislative intervention may be required to reverse the growth of secret law.

Introduction: "The Idea of Secret Laws is Repugnant"

To state the obvious, secret law is not consistent with democratic governance. If the rule of law is to prevail, the requirements of the law must be clear and discoverable. Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability. In short, as one federal appeals court put it, "The idea of secret laws is repugnant."1

From the beginning of the Republic, open publication of laws and directives was a defining characteristic. The first Congress of the United States mandated that every "law, order, resolution, and vote shall be published in at least three of the public newspapers printed within the United States."2

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In summary, it has become evident that there is a body of common law derived from the decisions of the Foreign Intelligence Surveillance 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.

the rest here:
http://judiciary.senate.gov/print_testimony.cfm?id=3305&wit_id=7145

[OnyxCollie]

1. Thanks, kpete. nt