Cameron Miranda
Secret law refers to legal authorities that require compliance but are withheld from the public. Since 2015, the different branches of the US federal government have accused each other of creating secret laws. The Executive Branch can write and execute secret laws without any public knowledge of their existence. This undermines the ability of the people to consent or ask for the law to be changed. Secret laws have been used to authorise mass surveillance programs, bulk email searches, and the collection of phone records. They have also been used to justify torture and to compel technology companies to disclose their source code. While some argue that secret operational details can be withheld, others argue that the rules must be published. The USA Freedom Act was passed to address these concerns, but it has not ended secret laws in the Legislative or Executive Branches.
| Characteristics | Values |
|---|---|
| Definition | Secret law refers to legal authorities that require compliance but are classified or withheld from the public |
| Examples | The Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Act (FISA) Court's rulings on surveillance activities, the USA Patriot Act, classified opinions of the Executive Office of Legal Counsel, secret agreements with foreign nations |
| Branches | Secret law is present in all three branches of the US government: Executive, Legislative, and Judicial |
| Concerns | Lack of transparency, potential harm to national security, infringement on personal privacy and expressive activities, negative effects on democracy |
| Proposed Solutions | Public law's supremacy over secret law, no secret criminal law, public notification of creation of secret law, presumptive sunset and publication dates, availability of all secret law to Congress, publication of a full declassification or summary of secret law |
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What You'll Learn
Secret laws and national security
Secret laws refer to legal authorities that require compliance but are withheld from the public. Secret laws are often justified on the basis of national security, with the argument being that disclosing certain information could harm national security interests.
The concept of secret laws can be traced back to the Totten bar, which was developed by the US Supreme Court in 1876. The Totten bar precluded judicial review in cases involving matters that were considered confidential. This was further developed in United States v. Reynolds (1953), where the modern state secrets privilege was established to protect the government's national security secrets.
The state secrets privilege has been invoked in various cases, such as in J.G.G. v. Trump, where the government argued that disclosing details about deportation flights could pose a reasonable danger to national security and foreign affairs. Another example is the case of Notra Trulock, who launched a defamation suit against a scientist falsely charged with stealing nuclear secrets. The state secrets privilege was invoked to prevent Trulock from seeking damages, as it was argued that national security would be compromised.
While the protection of national security is essential, secret laws can also present a threat to individual liberty and government transparency. Critics argue that secret laws undermine the very notion of a government that is accountable to the people and that they erode the checks and balances necessary for a healthy democracy.
To address these concerns, some scholars have proposed principles for governing secret laws, including the supremacy of public law over secret law, no secret criminal law, public notification of the creation of secret law, and the availability of all secret laws to Congress.
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Secret laws and privacy rights
Secret laws refer to legal authorities that require compliance but are withheld from the public. Secret laws are created and enforced by the Executive Branch, which has the power to invoke, change, or cancel them at any time without public knowledge. This undermines the ability of the people to consent or request changes to the law and circumvents the checks-and-balances lawmaking process.
In the United States, secret laws have been a concern since the post-9/11 counterterrorism measures taken by the Bush administration and the Patriot Act, which has been criticised for its secret interpretations. The USA Freedom Act was passed to address these concerns and require public notice of new legal interpretations, but it has not ended secret laws in the Legislative and Executive Branches.
The existence of secret laws raises concerns about privacy rights. Privacy laws in the United States aim to protect the privacy of individuals and businesses, including trade secrets, literary materials, and personal information. The right to privacy is defined as "the right to be let alone," excluding matters of public interest. The Privacy Act of 1974 and subsequent legislation establish a code of fair information practices and require agencies to safeguard personal information.
The tension between secret laws and privacy rights highlights the importance of transparency and accountability in governance. As Siân Berry, a member of the London Assembly, stated, "Being able to know what rules you are being governed by, and how to challenge them, is a fundamental part of democracy."
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Secret laws and government actions
Secret laws refer to legal authorities that require compliance but are withheld from the public. Secret laws can be created, invoked, changed, or cancelled by the President and agency officials without public notice. The existence and substance of these laws are kept from the public, Congress, and other branches of government.
Since the late 1970s, Congress has passed statutes containing secret provisions, or "addenda," which are hidden in a safe inside a secure room. These provisions often concern funding for intelligence agencies and programs, including telephone and internet surveillance, covert actions, and spy satellites.
The Executive Branch is the primary creator of secret laws and has unique secrecy incentives due to its massive size, classification authority, and responsibility for sensitive diplomatic, military, intelligence, law enforcement, and national security activities. The Foreign Intelligence Surveillance Court (FISC), which falls under the Executive Branch, has issued secret legal opinions approving mass surveillance programs and the daily collection of phone and internet records from millions of Americans.
The USA Freedom Act was enacted to address criticism of FISC's secret interpretations, requiring public notice of new legal interpretations. However, this Act does not fully address the issue of secret laws, as it still allows for legal analyses to remain unpublished, and it does not apply to the Legislative or Executive Branches.
The federal government has issued an unprecedented number of secret laws since 9/11, including legal memos, agency rules, court opinions, and agreements with foreign governments. These secret laws set binding standards for government conduct and have far-reaching consequences for the lives and liberties of Americans.
The existence of secret laws presents a challenge to democratic values and self-government, as citizens cannot make informed decisions or govern their behaviour when they are unaware of the laws that govern them.
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Secret laws and public consent
Secret laws refer to legal authorities that require compliance but are withheld from the public. The existence of secret laws has been a topic of debate, with some arguing that it undermines democratic principles of transparency and consent. The Executive Branch of the US government, led by the President, has the power to create and enforce secret laws without informing the public or Congress, which can short-circuit the checks-and-balances lawmaking process.
The argument for secret laws is that they are necessary for national security and sensitive diplomatic, military, and intelligence matters. However, critics argue that the public has a right to know the rules they are governed by and that secret laws can create a lack of transparency and make it difficult for citizens to provide consent or request changes.
The concept of "shallow secrecy" and "deep secrecy" has been proposed to distinguish between situations where the content of a secret law is unknown but its existence is acknowledged, and situations where even the existence of the law is a secret. In the case of shallow secrecy, the public consents to the existence of the law, but the details remain secret to prevent the law's purposes from being compromised.
To address the concerns surrounding secret laws, some have proposed principles such as the supremacy of public law over secret law, no secret criminal law, public notification of the creation of secret law, and the availability of all secret laws to Congress. Ensuring democratic accountability requires multiple stages of review within the legislative process and preventing the unchecked growth of government power.
While secret laws may be justifiable in certain sensitive contexts, the democratic process demands transparency, consent, and accountability. The challenge lies in balancing the need for secrecy in specific matters of national security with the public's right to know the rules by which they are governed.
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Secret laws and the constitution
Secret laws refer to legal authorities that require compliance but are classified or withheld from the public. In the United States, secret laws can take the form of classified opinions of the Executive Office of Legal Counsel, legal opinions of the Foreign Intelligence Surveillance Court (FISC), and secret agreements with foreign nations. The USA Freedom Act was enacted to address concerns about secret laws, requiring the government to make significant FISC opinions public. However, the government has refused to release pre-existing FISC opinions, and secret laws remain prevalent in all three branches of the US government.
The existence of secret laws poses a challenge to the principles of transparency and accountability in a democratic society. The public's access to laws and court rulings is essential to understanding how laws are interpreted and enforced, particularly regarding constitutional protections for personal privacy and expressive activities. Secret laws can also impact the ability of citizens to challenge the rules that govern them, as demonstrated in Franz Kafka's novel, "The Trial".
The Constitution's state secrets privilege allows the government to withhold certain information in civil cases to protect national security. However, this privilege does not supersede an individual's constitutional rights, such as the Sixth Amendment right to obtain witnesses in criminal cases and the Fifth Amendment right to access relevant exculpatory information.
The presence of secret laws in a democratic society raises important questions about the balance between national security and transparency. While some argue that operational details can be withheld, others emphasize the need for laws and rules to be published. The debate surrounding secret laws highlights the ongoing tension between government secrecy and the public's right to know.
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Frequently asked questions
Secret law refers to legal authorities that require compliance but are withheld from the public.
Secret laws are created by the Executive Branch, which has the power to invoke, change, or cancel them at any time without public notice.
Some examples of secret law include the Foreign Intelligence Surveillance Court (FISC) authorising the National Security Agency (NSA) to collect phone records, and the USA Freedom Act, which was an attempt to end secret laws.
Secret laws can have negative effects on democracy as they prevent the public from understanding how laws are being interpreted and implemented, and can also affect personal privacy and expressive activities.
