67 Pages Posted: 11 May 2015 Last revised: 3 May 2018
Date Written: March 21, 2017
The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.
This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond a reflexive aversion to secret law to unpack the underlying normative principles that both militate against secret law and motivate its widespread use. Secret law poses grave threats to basic values of democratic accountability, individual liberty, and separation of powers, but it also serves pragmatic national security purposes. By clarifying these competing values, it is possible to identify a number of distinct characteristics that make a given example of secret law especially odious—or essentially benign. This Article thus offers a systematic rubric for evaluating particular instances of secret law.
This Article also provides the first systematic review of the legal ecosystem that governs secret law in the Executive Branch—what I call the “law of secret law.” The picture that emerges is startling: existing law gives the Executive Branch enormous discretion to keep law secret. Indeed, the courts have effectively endorsed the practice of secret law, and Congress has been almost entirely quiescent in its face.
This Article proposes a novel reform agenda to transform this permissive legal ecosystem into one that more adequately protects transparency values. It offers core principles for a new framework statute limiting the practice of secret law. In addition, it argues that courts can and should prompt democratic deliberation over secret law (and legislative reconsideration of the status quo) by adopting a constitutional clear statement rule against secret law that is grounded in the text and structure of the Constitution.
Keywords: open government, transparency, national security, secret law, Freedom of Information, targeted killings, surveillance, unauthorized disclosures
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