A Problem of Standards?: Another Perspective on Secret Law
55 Pages Posted: 3 Feb 2016
Date Written: February 1, 2016
This Article provides a new perspective on the growth of secret law in the United States. It is widely assumed that the U.S. government’s exercise of national security powers suffers from excessive secrecy. Although secrecy presents significant challenges, it does not alone explain the lack of clarity surrounding the government’s legal justifications for using military force, conducting surveillance, or exercising other national security powers. The Article argues that what is often labeled “secret law” may also be understood as a consequence of how legal standards are used in this context.
The Article draws on the larger rules versus standards literature to help unpack the debate over secret law. This literature suggests that standards should become clearer and more predictable over time as a body of law accrues. The Article demonstrates, however, that in the national security context, standards tend to expand, becoming more fluid and indeterminate. While secrecy may impact the inflationary trajectory of national security standards, it does not alone explain it. The Article urges greater attention to how these standards are formulated and applied to produce a body of law that is more determinate and predictable and less prone to expansion. The Article also cautions against viewing national security as a form of legal exceptionalism and instead notes its connections to administrative law more generally.
Keywords: Constitutional Law; Secrecy; National Security; Administrative Law; Human Rights
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