Despite Post-Snowden Outcry, Report Details 'New Era of Secret Law'

In the wake of 9/11, the U.S. government began creating what has now become an “unprecedented buildup” of secret laws, and even the recent public backlash against them has not stopped widespread use of covert rules that impact Americans’ everyday lives without their knowledge, according to a new report from the Brennan Center for Justice.

The Department of Justice has kept classified at least 74 legal memos, opinions, and letters issued by the department’s Office of Legal Counsel (OLC) from 2002 to 2009 on national security issues—from torture to mass surveillance—according to the report, The New Era of Secret Law (pdf), written by Elizabeth Gotein, co-director of the center’s Liberty and National Security Program.

And the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence collecting activities, is also hiding 25 to 30 opinions issued between 2003 and 2013 “that were deemed significant by the Attorney General.” In fact, most of the significant case law written before National Security Agency (NSA) whistleblower Edward Snowden’s 2013 revelations remains undisclosed.

Fully 42 percent of binding agreements between the U.S. and other countries are also unpublished, the report finds.

The Washington Post spoke with Yale University international law professor Oona Hathaway, who said that number was “pretty stunning.”

The only legal groundwork for secret laws that regularly makes headlines are FISA and OLC opinions, Gotein notes. But there are other government entities that make law, and the increase of surveillance operations is a “potent force” behind the scenes. So where else is it occurring and how common is it?

“In the realm of national security, where Congress tends to tread lightly, other sources of law predominate,” Gotein writes for an op-ed in the New York Times.

For example, the Administrative Procedure Act (APA) requires agencies to invite public comment for proposed rules, while FOIA requires them to publish final rules in the Federal Registry. But intelligence agencies “routinely” exploit a narrow exception to those requirements to avoid having to publish new rules, Gotein says. And most presidential directives regarding national security policy are kept hidden as well.