SECRECY NEWS from the FAS Project on Government Secrecy Volume 2008, Issue No. 42 April 30, 2008 SECRET LAW DEBATED IN SENATE HEARING Secret law that governs the conduct of government activities but is inaccessible to the public is "a particularly sinister" phenomenon that is "increasingly prevalent," said Senator Russ Feingold today at a hearing of the Senate Judiciary Committee Subcommittee on the Constitution. The hearing produced a particularly rich record on the subject of secret law from a broad and diverse set of perspectives (including one view that "there is no such thing" as secret law). In my own testimony, I provided a catalog of the many current forms of "secret law" and some of their objectionable consequences. "If the rule of law is to prevail, the requirements of the law must be clear and discoverable," I suggested. "Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability." http://www.fas.org/sgp/congress/2008/043008aftergood.pdf The classification of the Office of Legal Counsel (OLC) memorandum of torture authored by John Yoo was "one of the worst abuses of the classification process I have seen during my career," testified J. William Leonard, the former director of the Information Security Oversight Office. More generally, "OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public," said Prof. Dawn E. Johnsen, former head of the OLC, "particularly when advising the executive branch that in essence it could act contrary to federal statutory restraints." Current OLC director John P. Elwood contended that current OLC disclosure policy "is consistent with the approach of prior Administrations." Brad Berenson, a former associate counsel to the President, articulated "legitimate interests in secrecy" and cautioned against disclosure initiatives that could have unintended consequences. Prof. Heidi Kitrosser explained the constitutional framework within which secrecy disputes take place and urged more "effective congressional oversight" to restrain abuses of secrecy. Attorney David Rivkin, a frequent defender of Administration policies, said that the "law of war" paradigm with all of its attendant secrecy remains the appropriate one. Sen. Sam Brownback expressed skepticism about new disclosure requirements, while Sen. Sheldon Whitehouse probed the destabilizing implications of the Administration view that executive orders can be "waived" by the President without notice to Congress or the public. The prepared statements from the Senate hearing are available here: http://judiciary.senate.gov/hearing.cfm?id=3305 --- SECRECY NEWS from the FAS Project on Government Secrecy Volume 2008, Issue No. 41 April 28, 2008 HEARING ON SECRET LAW The Senate Judiciary Committee will hold a hearing April 30 on the subject of "secret law." "It's been nearly forty years since Professor Kenneth Davis stated in his seminal treatise on administrative law that 'Secret law is an abomination'," according to a Committee announcement. "The upcoming hearing will examine the extent to which this abomination is gradually becoming a common state of affairs, and its effect on our democracy." The hearing will be chaired by Sen. Russ Feingold. I will be testifying, along with J. William Leonard, the former director of the Information Security Oversight Office, and a diverse group of others. See "Secret Law and the Threat to Democratic and Accountable Government": http://judiciary.senate.gov/hearing.cfm?id=3305 --- SECRECY NEWS from the FAS Project on Government Secrecy Volume 2008, Issue No. 32 April 2, 2008 ** 2003 OLC MEMO ON INTERROGATION DECLASSIFIED 2003 OLC MEMO ON INTERROGATION DECLASSIFIED A 2003 memo from the Justice Department Office of Legal Counsel that appears to authorize abusive interrogation of suspected unlawful combatants outside the United States was declassified this week. The memo concludes that criminal statutes that would preclude torture and other forms of physical abuse "do not apply to properly-authorized interrogations of enemy combatants." The memo, authored by John Yoo, was subsequently rescinded, amidst widespread criticism. From a secrecy policy point of view, the document itself exemplifies the political abuse of classification authority. Though it was classified at the Secret level, nothing in the document could possibly pose a threat to national security, particularly since it is presented as an interpretation of law rather than an operational plan. Instead, it seems self-evident that the legal memorandum was classified not to protect national security but to evade unwanted public controversy. What is arguably worse is that for years there was no oversight mechanism, in Congress or elsewhere, that was capable of identifying and correcting this abuse of secrecy authority. (Had the ACLU not challenged the withholding of the document in court, it would undoubtedly remain inaccessible.) Consequently, one must assume similar abuses of classification are prevalent. A copy of the 81-page memorandum on "Military Interrogation of Alien Unlawful Combatants Held Outside the United States," March 14, 2003, is posted here: http://www.fas.org/irp/agency/doj/olc-interrogation.pdf Secrecy News Blog: http://www.fas.org/blog/secrecy/ ------------------------------------------------ maybe linked www.perceptions.couk.com/nazi-uk.txt www.perceptions.couk.com/veilrants.txt www.perceptions.couk.com/good-edu.txt www.perceptions.couk.com/safety.txt www.perceptions.couk.com/safety2.txt ------------------------------------------------ FURTHER REFERENCES GO - "search perceptions" - in SEARCH-ENGINE file-ID www.perceptions.couk.com/fas-tort.txt