Government in secret

By Russ Feingold

May 8, 2008

The Bush administration recently announced it will allow select members of Congress to read Justice Department legal opinions about the CIA's controversial detainee interrogation program that have been hidden from Congress until now. But as the administration allows a glimpse of this secret law -- and it is law -- we are left wondering what other laws it is still keeping under lock and key.



It's a given in our democracy that laws should be a matter of public record. But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.



Perhaps the most notorious example is the recently released 2003 Justice Department memorandum on torture written by John Yoo. The memorandum was, for a nine-month period in 2003, the law that the administration followed when it came to matters of torture. And that law was essentially a declaration that the administration could ignore the laws passed by Congress.



The content of the memo was deeply troubling, but just as troubling was the fact that this legal opinion was classified and its content kept secret for years. As we now know, the memo should never have been classified because it contains no information that could compromise national security if released. In a Senate hearing that I chaired April 30, the top official in charge of classification policy from 2002 to 2007 testified that classification of this memo showed "either profound ignorance of or deep contempt for" the standards for classification.



The memos on torture policy that have been released or leaked hint at a much bigger body of law about which we know virtually nothing. The Yoo memo was filled with references to other Justice Department memos that have yet to see the light of day, on subjects including the government's ability to detain U.S. citizens without congressional authorization and the government's ability to bypass the 4th Amendment in domestic military operations.





Another body of secret law involves the Foreign Intelligence Surveillance Act (FISA). In 1978, Congress created the special FISA court to review the government's requests for wiretaps in intelligence investigations, which is -- and should be -- done behind closed doors. But with changes in technology and with this administration's efforts to expand its surveillance powers, the court today is doing more than just reviewing warrant applications. It is issuing important interpretations of FISA that have effectively made new law.

These interpretations deeply affect Americans' privacy rights, and yet Americans don't know about them because they are not allowed to see them. Very few members of Congress have been allowed to see them either. When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is.



The code of secrecy also extends to yet another body of law: changes to executive orders. The administration takes the position that a president can "waive" or "modify" a published executive order without any public notice -- simply by not following it. It's every president's prerogative to change an executive order, but doing so without public notice works a secret change in the law. And, because the published order stays on the books, Congress and the public have no idea that it's no longer in effect. We don't know how many of these covert changes have been made by this administration or, for that matter, by past administrations.



No one questions the need for the government to protect information about intelligence sources and methods, troop movements or weapons systems. But there's a big difference between withholding information about military or intelligence operations from the public and withholding the law that governs the executive branch. Keeping the law secret doesn't enhance national security, but it does give the government free rein to operate without oversight or accountability. Even the congressional intelligence committees, which are supposed to oversee the intelligence community, have been denied access to some of these legal opinions.



Congress should pass legislation to require the administration to alert Congress when the law created by Justice Department opinions ignores or even violates the laws passed by Congress, and to require public notice when it is waiving or modifying a published executive order. Congress and the public shouldn't have to wonder whether the executive branch is following the laws that are on the books or some other, secret law.

Sen. Russ Feingold (D-Wis.) is a member of the Senate Intelligence and Judiciary committees.