No More Secret Laws: How Disclosure of Executive Branch Legal Policy Doesn't Let the Terrorists Win

Abstract:     
The rule of law in a democratic nation demands that the laws governing people are not secret. Yet parts of the executive branch's legal policy that govern aspects of the current war on terror are laid out in non-public opinions issued the Department of Justice's Office of Legal Counsel. Many of those opinions, which are almost always binding on the executive branch and are used to provide legal comfort to government officials in the form of protection against future investigation or prosecution, are still secret or were kept secret for years before being leaked or disseminated to Congress and the public.

This Article assesses the historical pattern of politicization of executive branch legal policy in times of war or armed conflict and analyzes how secrecy in the development and implementation of legal policy compromises its quality and undermines public confidence in the integrity of executive branch constitutional interpretation. This Article critiques the lack of information disclosure from a domestic perspective and illustrates how other nations that face severe national security threats maintain greater transparency and accessibility in the development of legal policy, and thus a greater degree of integrity in their national security programs.

Keywords: oversight, office of legal counsel, rule of law, government accountability, comparative law

Accepted Paper Series