The Rule of Secret Law in the Bush Administration

The Senate Judiciary Subcommittee on the Constitution held a hearing on the proliferation of secret law in the Bush administration. In particular, the subcommittee focused on the role of the Office of Legal Counsel (OLC) in the Justice Department in the development of secret law governing the executive branch.

The hearing began with disagreement between the chairman and ranking member, Sens. Russ Feingold (D-WI) and Sam Brownback (R-KS), respectively, over what constituted secret law. Feingold argued that OLC memoranda and Foreign Intelligence Surveillance Court opinions are binding law and are often issued in secret. Brownback maintained that those issues do not comport with the notion of "secret laws," which he argued were limited to secret agency rules and regulations.

The OLC provides legal advice to the president to guide his decisions and executive agency actions. OLC memoranda are regarded as binding on the executive branch and often go unreviewed by courts and Congress. The OLC is infamous for John Yoo's secret 2002 torture memorandum, which limited the definition of torture to interrogation which results in "death, organ failure or the permanent impairment of significant bodily function."

A set of principles were developed by nineteen former OLC lawyers to guide the office in the wake of the recent controversies. The guidelines recommend, "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure."

Dawn Johnsen, former acting head of the OLC, testified that a contributing factor in the failure to provide the president with accurate legal advice is the failure to make such advice public. "OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public — particularly when advising the executive branch that in essence it could act contrary to federal statutory constraints."

Johnsen stressed that the OLC should be required to disclose opinions that state the president has the authority to operate in contravention to existing statutes or executive orders. It is particularly important that these memoranda be released, because without such disclosures, Congress and the public would not be given any notice that the president is not abiding by written law. Moreover, OLC memoranda often persist as binding on the executive without being reviewed by courts because they are never challenged or even known to exist.

John Elwood, current head of the OLC, disagreed. He argued that the president needs confidential advice and that the relationship of the OLC to the president should be regarded as an attorney-client relationship. "[T]he Executive Branch must be able to come to a unified interpretation of the law in order to carry out the President's constitutional duty to execute the law faithfully, and doing so necessarily requires the ability to seek and obtain confidential, authoritative legal advice within the Executive Branch," said Elwood.

Elwood also noted that the OLC under his leadership has maintained consistent publication procedures that resulted in a significant portion of memoranda being published on the office's website every year.

Steven Aftergood of the Federation of American Scientists countered Elwood, stating that there has been a "precipitous decline" in the number of OLC memoranda published during the Bush administration. From 1995 to 1997, there were 117 memoranda published, but from 2005 to 2007, there were only 23.

William Leonard, former director of the Information Security Oversight Office, remarked that the OLC torture memorandum never should have been classified in the first place. "The classification of this memo was wrong on so many levels," noted Leonard. It did not contain any sensitive information, only legal analysis, did not identify who marked the document as classified, and did not contain any reasons for why it was classified, all in violation of classification procedures and all done, presumably, by a high-level government official in the Justice Department. Moreover, the administration has never pursued an investigation of who inappropriately classified the document.

The OLC has also been at the center of controversy regarding its advice on the National Security Agency's secret warrantless wiretapping program and the secret Central Intelligence Agency prisons.

The role of the Foreign Intelligence Surveillance Court's issuance of secret opinions, the issuance of secret presidential directives, and the Transportation Security Administration's issuance of secret security regulations were also covered during the hearing. All of these activities have created an environment in which the American public is subject to secret laws, a notion that is anathema to a democratic government. The hearing also attempted to grapple with the role of Congress in examining the magnitude of the problem and restraining the rule of secret law.

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, noted, "Secret law is not a check on government; when law is kept secret, the rule of law suffers."

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