Despite Post-Snowden Outcry, Report Details “New Era of Secret Law”

spy_graffitiBy Nadia Prupis

In the wake of 9/11, the U.S. government began creating what has now become an “unprecedented buildup” of secret laws, and even the recent public backlash against them has not stopped widespread use of covert rules that impact Americans’ everyday lives without their knowledge, according to a new report from the Brennan Center for Justice.

The Department of Justice has kept classified at least 74 legal memos, opinions, and letters issued by the department’s Office of Legal Counsel (OLC) from 2002 to 2009 on national security issues—from torture to mass surveillance—according to the report, The New Era of Secret Law (pdf), written by Elizabeth Gotein, co-director of the center’s Liberty and National Security Program.

And the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence collecting activities, is also hiding 25 to 30 opinions issued between 2003 and 2013 “that were deemed significant by the Attorney General.” In fact, most of the significant case law written before National Security Agency (NSA) whistleblower Edward Snowden‘s 2013 revelations remains undisclosed.

Fully 42 percent of binding agreements between the U.S. and other countries are also unpublished, the report finds.

The Washington Post spoke with Yale University international law professor Oona Hathaway, who said that number was “pretty stunning.”

The only legal groundwork for secret laws that regularly makes headlines are FISA and OLC opinions, Gotein notes. But there are other government entities that make law, and the increase of surveillance operations is a “potent force” behind the scenes. So where else is it occurring and how common is it?

“In the realm of national security, where Congress tends to tread lightly, other sources of law predominate,” Gotein writes for an op-ed in the New York Times.

For example, the Administrative Procedure Act (APA) requires agencies to invite public comment for proposed rules, while FOIA requires them to publish final rules in the Federal Registry. But intelligence agencies “routinely” exploit a narrow exception to those requirements to avoid having to publish new rules, Gotein says. And most presidential directives regarding national security policy are kept hidden as well.

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All this means “[s]ecret law persists even in areas where we thought the secrecy had ended,” she writes.

Gotein continues:

We pay a high price for this system. Secret law denies us the ability to shape the rules that govern official conduct through the democratic process. It prevents us from holding the government accountable for violations, rendering such violations more likely. It weakens checks and balances, as both legislative and judicial oversight operate less effectively under the constraints imposed by secrecy.

Secret law is also bad law: When rules are developed by small groups of officials without the input of outside experts or stakeholders, their quality suffers. Indeed, an inherent conflict of interest exists when the executive branch enacts laws out of the public eye to govern its own actions. This can result in policies that are ineffective, ill advised, or even contrary to statutes or the Constitution.

However, she notes, there has been some recent progress to rein in secret law, such as a 2015 ruling requiring more transparency in FISA rulings.

“These changes are proof of concept, as the law in these areas has become far more accessible without harm to national security. We should now build on this progress,” she writes.

The report makes six recommendations to reform the prevalence of secret law throughout the government, including:

  • Using an already-existing inter-agency body of senior officials to make decisions on legal rules and interpretations
  • Making the standard for keeping laws secret more stringent than the current standard
  • Designating certain categories of law as ones that should never be kept secret, such as pure legal analysis containing no sensitive facts, and legal interpretations that aim to exempt government agencies from compliance with statutes
  • Requiring the executive branch to immediately share new secret laws with other independent oversight bodies
  • Placing a four-year time limit on secret law and allowing no more than two renewals total
  • Creating a public database that lists all the information on secret rules and interpretations that can be made available

“Together, these reforms could help ensure that the law is withheld from the public only when the risk to national security outweighs countervailing harms,” the report states. “But we must be vigilant, as secrecy in government is notoriously difficult to contain…. The time has come to move past the modern era of secret law and return to the nation’s historical commitment to legal transparency.”

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License. Nadia Prupis writes for CommonDreams.org, where this article first appeared.

Image: The Department of Justice has kept classified at least 74 legal memos, opinions, and letters on national security issues—from torture to mass surveillance. (Credit: duncan c/flickr/cc)


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5 Comments on "Despite Post-Snowden Outcry, Report Details “New Era of Secret Law”"

  1. deplorableSallyM | October 19, 2016 at 7:19 am | Reply

    …”the very word SECRECY is REPUGNANT to a free and open society…” JFK, circa 1963…RIP
    More reasons to cut the taxes off.
    The people are free to replace this form of idiocracy.
    SHEandHEandTHEYareDESPICABLE

  2. These tyrants want to make sure we’re ALL criminals now – for just about everything we do, don’t do, say, don’t say and now they are working on “thought crimes.” Marx and Engels would be proud of this vile global government of pathological liars.

  3. The American Reinvestment and Recovery Act and the brain initiative are the worst scams ever perpetrated on the American people. Former U. S. Surgeon General Regina Benjamin Warns: Biochips Hazardous to Your Health: Warning, biochips may cause behavioral changes and high suicide rates. State Attorney Generals are to revoke the licenses of doctors and dentists that implant chips in patients. Chip used illegally for GPS, tracking, organized crime, communication and torture. Virginia state police have been implanting citizens without their knowledge and consent for years and they are dying! Check out William and Mary’s site to see the torture enabled by the biochip and the Active Denial System. See Terrorism and Mental Health by Amin Gadit or A Note on Uberveillance by MG & Katina Michael or Safeguards in a World of Ambient Intelligence by Springer or Mind Control, Microchip Implants and Cybernetics. Check out the audio spotlight by Holosonics. The truth is the biochip works like a sim card. It received pulsed modulated laser beams and millimeter wave which it converts into electromagnetic waves that your brain interprets into digital images and sound. It then takes what your brain sees and hears and converts electromagnetic waves into digital and acoustic waves that a computer translates into audio and video. In other words, it allows law enforcement to see what you see, hear what you hear and communicate directly with your brain.

    “Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small, ingestible microchip that we can all be expected to swallow by 2017. “A means of authentication,” she calls it, also called an electronic tattoo, which
    takes NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem between machines and humans,’ and specifically targets 10 – 20 year olds in her rant about the wonderful qualities of this new technology that can stretch in the human body and still be functional. Hailed as a ‘critical shift for research and medicine,’ these biochips would not only allow full access to insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives which are truly none of their business, and certainly an extension of the removal of our freedoms and rights.” Google News

    The ARRA authorizes payments to the states in an effort to encourage Medicaid Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene. Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.) This case precedent requires police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you. You can also be forced to have a biochip if you have an infectious disease – like Eboli or Aids.

    Coalition of Justice vs the City of Hampton, VA settled a case out of court for $500,000 and removal of the biochip. Torture is punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05 million. They told my family it was the brain initiative. I checked with the oversight board, and it is not! Mark Warner told me it was research with the Active Denial System by the College of William and Mary, the USAF, and state and local law enforcement. It is called IBEX and it is excruciating. I have had 3 surgeries at the site of the implant and need another. It causes cancer! I’ve been tortured for 8 years by Virginia law enforcement. Thousands of innocent Virginians are being tortured and murdered by criminal cops. Please help us get the word out to end these heinous atrocities. The pain is 24/7. The VA DCJS sent me a letter stating cops can get keys to anyone’s home and steal anything they please. The governor knows and takes his cut. Senator Kaine said the FBI is not involved so he can’t help. Check out Virginia’s Casual Disregard for the Constitution at forbes dot com. Check out Richard Cain’s case. They are torturing infants and children. The active denial system comes in rifle form and can murder without leaving a mark. I have had two heart attacks and am blessed to be alive. We need to make the nation aware to stop these thugs. Now a Dr. Whaley of the Medical Examiner’s office reports covering up murders by cops and selling brains for $6250 each to the NIH. Beware of Riverside and Sentara Hospital. Beware of Dr. Lawrence Chang, Pariser Dermatology, Dr. Nicole Nelson, Dr. Shaista Ahsai, and Dr. Lika in her red mercedes, and Riverside Emergency Room Physicians, and Dr. Denis Cruff, Dr. Mark Kanter and Hampton Sentara Surgeons and Tidewater Multi-specialty Group and Dr. Elizabeth Cooper. Most of all, beware of state and local police in Virginia. Please help us.

  4. The obvious use of mind-altering signals and chemtrail spraying, combined with years of fluoridation, has dumbed-down the American people. Great job trying to awaken them.

    • There is no bottom or level of depth to their depravity and your fellow Americans are complete idiots. You are living in the Twilight Zone, but you are not alone and not everyone is asleep. I did catch an episode of Redacted Tonight on YouTube and they said there was a study which shows Tyenol, or Acetaminophen was linked to lower empthy levels.

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