< Return To Hearing
April 30, 2008
Statement of Steven Aftergood
Federation of American Scientists
Hearing on Secret Law and the Threat to Democratic
April 30, 2008
Thank you for the opportunity to address the Subcommittee.
Secret law that is inaccessible to the public is inherently antithetical to democracy
Introduction: "The Idea of Secret Laws is Repugnant"
From the beginning of the Republic, open publication of laws and directives was a defining characteristic. The first Congress of the United States mandated that every "law, order, resolution, and vote [shall] be published in at least three of the public newspapers
Secret law in the United States also has a history, but for most of the past two centuries it was attributable to inadvertence and poor record keeping, not deliberate
Confronted with the rise of the administrative state and its increasingly chaotic records management practices, Congress responded with a series of statutory
FOIA was designed... as a means of deterring the development and application of a body of secret law."4
FISA Court Opinions
Many of the concerns that arise from secret law are exemplified in the dispute over public access to judicial interpretations of the Foreign Intelligence Surveillance Act (FISA), the law that regulates domestic intelligence surveillance.
The ongoing political turmoil associated with amending the FISA was prompted by decisions made in 2007 by the Foreign Intelligence Surveillance Court, reinterpreting
In August 2007, the American Civil Liberties Union petitioned the Foreign Intelligence Surveillance Court (FISC) on First Amendment grounds to publicly disclose
The ACLU noted that the contents of the requested rulings had been repeatedly referenced by Administration officials, including the Attorney General and the Director
While the government contends to this Court that the sealed materials are properly classified and must remain secret in their entirety, administration officials
Given the many public statements made by government officials, it is plain that at least some of the sealed materials can be disclosed.... The administration's own
And the requesters proposed a crucial distinction between the Court's legal interpretations, which they argued should be presumptively releasable, and operational
Needless to say, the ACLU does not ask the Court to disclose information about specific investigations or information about intelligence sources or methods.
The Justice Department denied that such a distinction could be maintained: Any legal discussion that may be contained in these materials would be
The Justice Department went on to assert, improbably in my opinion, that not even the "volume" of the materials at issue, let alone their contents, could be safely disclosed.10
The Court denied the ACLU motion and asserted, in any case, that it lacked the expertise to declassify the requested records without undue risk to national security.
Perhaps most important, the Court decision confirmed that the FISA Court is not simply engaged in reviewing government applications for surveillance authorization to ensure that they conform with legal requirements. Rather, the Court has repeatedly generated binding new interpretations of the FISA statute. Thus, aside from the 2007 opinions sought by the ACLU,
In summary, it has become evident that there is a body of common law derived from the decisions of the Foreign Intelligence Surveillance Court that potentially
Office of Legal Counsel Opinions
The Office of Legal Counsel at the Justice Department produces opinions on legal questions that are generally binding on the executive branch. Many of these opinions
Other witnesses today will address this category of "secret law" in detail. I would only note that there appears to be a precipitous decline in publication of OLC opinions in recent years, judging from the OLC website.13 Thus, in 1995 there were 30 published
Some opinions were not published until
Reversible Executive Orders
One secret OLC opinion of particular significance, identified last year by Senator 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
An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an
Sen. Whitehouse expressed particular concern about the status of Executive Order 12333, an order published in 1981 which governs the conduct of surveillance and other
Executive orders are used to define some of the most basic policy positions of the United States, on everything from assassination of foreign leaders to domestic
Not even the language cited by Sen. Whitehouse could be released.17 Thus the legal opinion that places the status of thousands of executive orders in doubt itself remains classified. Secondly, the idea that a President can simply waive an executive order "whenever he wishes" without notice (as opposed to formally rescinding or replacing it,
Secret Presidential Directives
By late January 2008, the Bush Administration had issued 56 National Security Presidential Directives (NSPDs) on many diverse national security topics. Most of these directives are undisclosed. Texts of the directives or descriptive fact sheets have been obtained for about a third of them (19). Titles alone have been ascertained for 8 more.
Suspected or reported topic areas have been proposed for another 19. No data at all are available for at least ten others.18
Unlike the case of some other categories of "secret law," this does not represent a significant departure from recent past practice. The Clinton Administration, for example, issued a total of 75 Presidential Decision Directives, with a roughly comparable proportion of classified, unclassified, and unidentified directives.
Nevertheless, such national security directives are a vexing instrument of executive authority since they often combine significant national policy initiatives with unwavering secrecy. They "commit the Nation and its resources as if they were the law of the land" and yet in most cases "they are not shared with Congress" or the public.19
Presidential directives, many of which carry the force of law, can take a bewildering number of different forms, including memoranda, orders, proclamations, and more.20 Because the President is not subject to the Freedom of Information Act, the public is dependent on the good graces of the Administration for access to many of these
Transportation Security Directives
In the post-September 11, 2001 statute that created the TSA, Congress directed the agency to devise regulations to prohibit disclosure of "information obtained or developed in carrying out security [if disclosure would] be detrimental to the security of
But in its implementing rule, TSA interpreted this mandate broadly to permit or require the withholding of an entire class of "security directives."22
Consequently, in an apparent departure from congressional intent, a whole series of binding regulations governing passenger inspection, personal identification and other
Some Americans understandably wondered why and how they could be required to comply with regulations that they could not see.23
Secret Law in Congress
It may be noted that the problem of secret law is not exclusively attributable to the executive branch. Congress has participated in the propagation of secret law through the adoption of classified annexes to intelligence authorization bills, for example. Such annexes may establish national policy, or require or prohibit the expenditure of public funds, all without public notice or a semblance of accountability. In a broader sense, Congress has acquiesced in the secret law practices identified above by failing to effectively challenge them.
On the other hand, Congress enacted legislation for the first time last year to require public disclosure of the amount of the National Intelligence Program budget, a step away from the inherited Cold War practice of secret law.
It should be possible to identify a consensual middle ground that preserves the security of genuinely sensitive national security information while reversing the growth
The fact that the FIS Court was unwilling (and believed itself unable) to adopt and apply this distinction in practice suggests that legislative action may be needed to reestablish the norm that secret laws are anathema. The pending "State Secrets Protection Act" (S. 2533) that was reported out of the Judiciary Committee on April 24
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.
1 Torres v. I.N.S., 144 F.3d 472, 474 (7th Cir. 1998).
2 1 Stat. 68. Cited by Harold C. Relyea, "The Coming of Secret Law," Government
3 Relyea, "The Coming of Secret Law," p. 104, citing Panama Refining Company v.
4 Providence Journal Co. v. Department of the Army, 981 F.2d 552, 556 (1st Cir. 1992).
5 Motion of the American Civil Liberties Union for Release of Court Records, August 8,
6 Reply of the American Civil Liberties Union in Support of Motion for Release of Court Records, September 14, 2007, at pp. 1, 2, 10. Copy available at:
7 Ibid., pp. 8, 12-13.
8 Motion of the American Civil Liberties Union for Release of Court Records, August 8, 2007, at p. 12.
9 Opposition to the American Civil Liberties Union's Motion for Release of Court
10 Ibid., p. 14, footnote 9.
11 Memorandum Opinion by Judge John D. Bates, Foreign Intelligence Surveillance
12 Ibid., at page 15.
13 http://www.usdoj.gov/olc/opinionspage.htm .
14 Principles to Guide the Office of Legal Counsel, a White Paper published by the
15 Statement of Sen. Whitehouse, December 7, 2007, Congressional Record, pp. S15011-
16 "United States Intelligence Activities," Executive Order 12333, 4 December 1981,
17 Letter to me from Paul P. Colborn, Special Counsel, Office of Legal Counsel, February 5, 2008, denying a FOIA request dated December 18, 2007.
18 A collection of unclassified NSPDs, fact sheets and related material is available here:
19 Relyea, "The Coming of Secret Law," op.cit., p. 108. See also U.S. General Accounting Office, "National Security: The Use of Presidential Directives to Make and Implement U.S. Policy," January 1992, report no. GAO/NSIAD-92-72.
20 See Harold C. Relyea, "Presidential Directives: Background and Overview," Congressional Research Service, updated August 9, 2007. Copy available at:
21 The Aviation and Transportation Security Act, 49 U.S. Code 114(s)(1).
22 Protection of Sensitive Security Information, Interim Final Rule, Federal Register, May
23 See my article "The Secrets of Flight," Slate, November 18, 2004, available at: http://www.slate.com/id/2109922/