Coming to Terms with Secret Law
7 Harvard National Security Journal 241 (2015)
150 Pages Posted: 8 Nov 2015 Last revised: 8 Apr 2016
Date Written: November 01, 2015
The allegation that the U.S. government is producing secret law has become increasingly common. This article evaluates this claim, examining the available evidence in all three federal branches. In particular, Congress’s governance of national security programs via classified addenda to legislative reports is here given the first focused scholarly treatment, including empirical analysis that shows references in Public Law to these classified documents spiking in recent years. Having determined that the secret law allegation is well founded in all three branches, the article argues that secret law is importantly different from secrecy generally: the constitutional norm against secret law is stronger than the constitutional norm against secret fact. Three normative options are constructed and compared: live with secret law as it exists, abolish it, or reform it. The article concludes by proposing rules of the road for governing secret law, starting with the cardinal rule of public law’s supremacy over secret law. Other principles and proposals posited here include an Anti-Kafka Principle (no criminal secret law), public notification of secret law’s creation, presumptive sunset and publication dates, and plurality of review within the government (including internal Executive Branch review, availability of all secret law to Congress, and presumptive access by a cadre of senior non-partisan lawyers in all three branches).
Keywords: secret law, surveillance, secrecy, classified information, intelligence, national security, administrative law, U.S. Congress, Congress, legislation, legislative history, National Security Agency, Justice Department, Executive Orders, privacy, empirical legal studies, Constitution, budget
JEL Classification: H10
Suggested Citation: Suggested Citation