Secret Laws: Can Congress Keep Us In The Dark?

The concept of secret laws is not new, and it is not always nefarious. In the United States, Congress has the power to pass secret laws, and this has happened on several occasions. The Executive Branch, on the other hand, is not required to inform the public or even Congress about the existence or extent of secret laws. While the idea of secret laws may seem objectionable, it is important to note that they are often driven by national security considerations. In this paragraph, we will explore the topic of secret laws, their implications, and the role of Congress in their creation and implementation.

Secret laws and national security

Secret laws and their negative effects have been a topic of discussion for years, with references made in Franz Kafka's novel Der Prozess (The Trial). While it may seem like a concept from a fictional story, secret laws do exist and have been passed by Congress in the United States. The term "secret law" refers to legal authorities that require compliance but are classified or otherwise unpublished. These laws are often created in the name of national security, but they raise important questions about transparency and accountability in a democratic society.

Historically, there have been instances where Congress has passed laws without making them public. For example, during the War of 1812, Congress passed a bill in a closed session, allocating funds for a secret cause. The existence of this law was not revealed until after the war ended in 1818. In another instance, an act passed by Congress in 1795 was not to be printed or published until directed by the President, allowing them to hide the existence of the law and its proceedings.

In modern times, the practice of creating secret laws has evolved. Congress has been known to use "classified schedules of authorizations" or "classified annexes" to direct spending on matters they wish to keep confidential. This is especially prevalent in national security legislation, such as the Intelligence Authorization Act (IAA), National Defense Authorization Act (NDAA), and Department of Defense Appropriations Act (DODAA). These acts often include classified addenda that put the force of law behind them, which can be problematic as they are not subject to the same level of scrutiny and review as public laws.

The creation of secret laws by the Executive Branch is even more concerning. The Executive Branch has the power to write and enforce secret laws without informing the public or even Congress in some cases. This type of "deep secrecy" short-circuits the ability of citizens to consent or request changes to the law and can lead to an expansion of government power without oversight. While the Constitution allows for secret sessions and the omission of sensitive material from the official journal, the lack of transparency in lawmaking can be detrimental to democratic principles.

In conclusion, while secret laws may be justified in certain national security situations, it is essential to balance this with the need for transparency and accountability. The existence of secret laws can undermine public trust in government institutions and erode democratic values. To address this, there should be multiple review processes within each branch of government to prevent the creation of secret laws known only to a select few. Additionally, Congress should provide assurances that classified addenda do not grant the government excessive power or create secret criminal laws that impose duties on the public without their knowledge.

Secret laws and democratic accountability

Secret laws and their negative effects have been a topic of discussion for decades, with references in literature such as Franz Kafka's novel "Der Prozess" (The Trial). The concept of secret laws is often objectionable due to its interference with democratic accountability and natural justice. While Congress has the ability to meet in secret sessions and omit certain information from the official journal, the existence of secret laws and their creation is often challenging to hide from the public.

In the United States, the Executive Branch has the power to create and enforce secret laws without informing the public or even Congress. This deep secrecy undermines the principle of consent and the ability of the people to request changes to the law. The Executive Branch is only legally obligated to share its secret laws with Congress in specific situations, such as informing them of the legal basis for intelligence activities. This dynamic short-circuits the checks-and-balances lawmaking process and the Constitution's shared powers structure.

Congress, on the other hand, has been known to pass laws in secret, particularly in matters of national security and spending. For instance, during the War of 1812, Congress passed a bill in a closed session, allocating funds for a secret cause. The existence of this law was not revealed to the public until after the war ended in 1818. In recent years, Congress has also accelerated the passage of provisions that give classified addenda legal force, often related to national security and intelligence.

To ensure democratic accountability, it is crucial that Congress has access to all secret laws and that there are multiple stages of review within the legislative process. Statutory provisions within classified addenda should be subject to sunsets or declassification reviews to prevent the unchecked growth of government power. Additionally, Congress should provide assurances that secret laws do not impose secret criminal statutes or duties on the public. While the existence of secret laws may be justifiable in certain sensitive contexts, democratic principles demand transparency, consent, and accountability in the lawmaking process.

Secret laws and the Executive Branch

The Executive Branch of the US government is led by the President and includes the Vice President and the Cabinet. The President is responsible for implementing and enforcing the laws written by Congress and has the power to sign legislation into law or veto bills passed by Congress. The Executive Branch also conducts diplomacy with other nations, and the President can negotiate and sign treaties, which must be ratified by two-thirds of the Senate.

The Executive Branch has significant power over secret laws. It is not required to inform the public or even Congress about the existence or extent of secret laws. The President and agency officials can invoke, change, or cancel Executive Branch secret laws at any time without public notice. This ability to keep the existence of a law itself a secret is known as "deep secrecy." This practice undermines the ability of the people and Congress to ask for changes to the law and circumvents the Constitution's checks-and-balances lawmaking process.

The Executive Branch's secrecy is enabled by various factors, including its regulatory power, personnel in the field, classification authority, and responsibility for sensitive matters. The creation of secret laws by the Executive Branch often arises from the need to address national security concerns. For example, in the wake of the intelligence abuses documented in the 1970s, Congress passed annual national security bills with classified legislative addenda, effectively creating secret laws.

While the Executive Branch generally operates with significant secrecy, there are some situations in which it is legally obligated to share its secret laws with Congress. For instance, the Executive Branch must inform Congress of the legal basis for intelligence activities. However, the public and Congress are often kept in the dark about the extent and nature of secret laws, making it challenging to address concerns related to democratic accountability and natural justice.

Secret laws and the Constitution

The concept of secret laws is objectionable on many grounds, including natural justice and interference with democratic accountability. While the Constitution does not explicitly prohibit Congress from passing secret laws, it does allow for secret material to be omitted from the official journal.

Historically, there have been instances where Congress has passed laws without revealing their full details to the public. For example, during the War of 1812, Congress passed a bill in a closed session, allocating funds for a secret cause. The existence of this law was not made public until after the war ended in 1818. Similarly, in the late 1700s, Congress passed a law that was not to be printed or published until directed by the President, hiding the existence of the law and its contents.

In recent years, Congress has continued to pass provisions that give classified addenda legal force. This includes national security bills such as the Intelligence Authorization Act (IAA), National Defense Authorization Act (NDAA), and Department of Defense Appropriations Act (DODAA). These bills contain classified schedules or annexes that are not accessible to the public.

While Congress has the ability to meet in secret sessions and pass laws without revealing all the details, it is important to note that the full legislative record is usually made public after the fact. In modern times, it would be challenging for Congress to hide the fact that it had passed a law, even if the specific contents of that law remain classified.

Secret laws and the role of the President

The concept of secret laws is objectionable on the grounds of natural justice and interference with democratic accountability. Secret laws also raise legal questions, such as the Constitutional prohibition on ex post facto laws.

In the United States, the Executive Branch, which includes the President, has the power to write and implement secret laws without informing the public or even Congress. This power is referred to as "deep secrecy," where the existence of the secret law is unknown, as opposed to "shallow secrecy," where the content of the secret is unknown but its existence is known. The Executive Branch can invoke, change, or cancel secret laws at any time without public notice, and there is no requirement for the next presidential administration to review or take ownership of secret laws.

While Congress has the power to pass laws in secret, it is required to inform Congress of the existence of secret laws in certain situations, such as the legal basis of intelligence activities. Congress has also been known to pass laws in secret, such as during the War of 1812, and to include classified addenda in its legislation, which are not made public.

The role of the President in secret laws is complex and varies depending on the specific circumstances. In some cases, the President may direct the creation or implementation of secret laws, while in other cases, the President may be kept in the dark about the existence of certain secret laws. Ultimately, the President has the power to invoke, change, or cancel secret laws created by the Executive Branch, which includes the President's office, at their discretion.

Frequently asked questions