Once upon a time, a team of federal attorneys went before the Supreme Court only to discover that their entire case was based on a revoked executive order and therefore moot.
True story. Look it up. Panama Refining Company v. Ryan. The revoked presidential order was understandably missed by the attorneys. The revocation had never been made public -- an example of what legal scholars refer to as "secret law."
Cases like that caused Congress, in the '30s and '40s, to pen legislation aimed at bringing order to the dissemination of vital government information, amid the chaotic complexity of state administrative laws and downright shoddy record-keeping. Congress also established statutes to keep a growing body of secret law in check.
That's how we got the Federal Register Act of 1935, the Administrative Procedures Act of 1946 and the golden key to open government (and investigative reporting) -- the Freedom of Information Act (FOIA).
Those legislative acts exemplify one of the defining features of American government -- the publicizing of laws and regulations. The political philosophy isn't hard to understand. Secret laws are the antithesis of a free and open society, which explains why the first U.S. Congress mandated that every "law, order, resolution, and vote (shall) be published in at least three of the public newspapers printing within the United States."
But, never mind -- for the moment -- the decline of newspapers, and the harmful implications it has for democratic governance. Even more alarming is the underreported increase of unpublicized "secret laws," clandestinely cultivated in recent years.
We're talking everything from secret interpretations of the Foreign Intelligence Surveillance Act and opinions from the Office of Legal Counsel (OLC) to secret Presidential directives and transportation security orders.
And don't let the word "opinion" throw you off. If, for example, they're "opinions" issued by the OLC -- like the now infamous Yoo torture memos -- those kind of "opinions" are binding on the executive branch.
So, while the Washington press heavy-hitters were analyzing flag pins and pastors, a Judiciary subcommittee hearing was held on "Secret Law and the Threat to Democratic and Accountable Government".
Among the half-dozen or so witnesses to testify was the director of the Project on Government Secrecy at the Federation of American Scientists, Steven Aftergood -- one of the nation's preeminent authorities on secret law. What should have been a top-story across the country was rendered invisible by a tsunami of triviality.
Here's some testimony you probably missed:
"There has been a discernible increase in secret law and regulation in recent years" to the point where "legislative intervention" is required to "reverse the growth."
Unsurprisingly, secret law really became entwined with the government during the Cold War. But today, "secrecy not only persists, it is growing. Worse, it is implicated in fundamental political controversies over domestic surveillance, torture, and many other issues directly affecting the lives and interests of Americans."
The law that governs espionage activity has been re-interpreted by the FISA Court, the specific nature of which has not been disclosed to the public?
In August 2007, the American Civil Liberties Union petitioned the court on First Amendment grounds to make public those legal rulings, after redacting classified information. The court denied the ACLU petition, claiming it didn't have the expertise to decide what information should be redacted.
The denial was issued despite it being evident "that there is a body of common law derived from the decisions of the (FISA 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," Aftergood testified.
Other areas of concern: "there appears to be a precipitous decline in publication of OLC opinions in recent years ... In 1995, there were 30 published opinions, but in 2005 there were 13. In 1996, there were 48 published opinions, but in 2006 only 1. And in 1997 there were 29 published opinions, but only 9 in 2007."
"One secret OLC opinion of particular significance, identified last year by Sen. Whitehouse, holds that executive orders, which are binding on executive branch agencies and are published in the Federal Register, can be unilaterally abrogated by the President without public notice."
Such orders mean "Congress is left with no opportunity to respond to the change and to exercise its own authority as it sees fit. Worse, the OLC policy ... implies a right to actively mislead Congress and the public."
Here's something else that's been waaaay underreported. As of January 2008, the Bush administration has issued 56 National Security Presidential Directives on a range of national security issues. Most of those directives have not been disclosed. "Texts of the directives or descriptive fact sheets have been obtained for about a third of them (19)," Aftergood testified. Only the titles have been obtained on 8 of the directives and absolutely no information is available for 10.
Congress has also gotten in on the action, having "participated in the propagation of secret law through the adoption of classified annexes to intelligence authorization of bills, for example."
Aftergood concluded his testimony, rightly observing that "it should be possible to identify a consensual middle ground that preserves the security of genuinely sensitive national security information while reversing the growth of secret laws."
That's why he's pushing for the passage of the State Secrets Protection Act -- S. 2533 -- which aims to balance conflicting interests of secrecy and public disclosure.
"The rule of law, after all, is one of the fundamental principles that unites us all, and one of the things we are committed to protect. Secret law is inconsistent with that commitment."
Of course, whenever someone points out how civil liberties have taken a back-seat in the name of "national security" under Bush, what's the typical response of true believers?
They call talk radio, blog and write letters-to-the-editor about how "liberals" and "leftists" aid and abet terrorists with a naive insistence that America's political leaders adhere to quaint luxuries like long-established Constitutional freedoms.
The old saw -- "loose lips sinks ships" -- has been replaced by another now familiar brain-dead mantra: "if you're doing nothing wrong, you have nothing to worry about." But the metastasizing growth of secret law pulls the rug out from underneath that flimsy argument. And for obvious reason: you can't know what you don't know.
