Critics are complaining about the increasing role “classified law” plays in the policymaking process. That classification makes it difficult for those outside the process to know exactly how far-ranging the law has become, while those who are familiar with its contents are barred from talking about it.
“The public legislative record shows that secret law is a limited but consistently enacted exception to Congress’s norm of writing Public Law,” said Dakota Rudesill, a law professor at Ohio State University. “There is a pattern of a higher rate of statutory creation of secret law associated with periods of armed conflict,” he said, pointing to the 1991 Persian Gulf War and particularly the war on terrorism.
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Classified legislation, applicable to mainly to the government’s surveillance authority, is enabled through authorizing provisions passed as part of public law. Those provisions are included in three annual items: the Intelligence Authorization Act, the National Defense Authorization Act and the Department of Defense Appropriations Act.
The alleged role that classified law plays in authorizing controversial policy has been at the forefront of public attention since 2013, when former NSA contractor Edward Snowden leaked a classified surveillance court decision about his agency’s expansive surveillance programs. They included the agency’s surveillance of communication taking place online, as well as its indiscriminate collection of telephonic metadata. It was just months before the disclosures that Director of National Intelligence James Clapper told senators his agency would “not wittingly” collect that type of data.
Clapper’s statement came in response to a question from Sen. Ron Wyden, D-Ore. It served to enflame the controversy that followed Snowden’s disclosures. It ultimately led Congress to allow authority for the program to lapse in November 2015. Yet the agency’s surveillance of communication online isn’t set to end until the end of 2017, and Congress could still act to renew authority.
Wyden has been critical of that prospect. But as a member of the Senate Intelligence Committee, he may have even less liberty to complain about the law than those outside the process. “Nothing,” he said in response to what he could share on the topic. “I break no oaths, I share no secrets.”
He added that those who support classification have more freedom to speak in public than those who stand in opposition. “I get the sense that there is a double standard where defenders of particular programs can disclose classified information and get off scot-free, while critics of the programs go to prison,” he said.
Congress is not the only branch of government responsible for creating classified legal authorities. Wyden has also called for the revision of a 2003 opinion issued by the White House Office of Legal Counsel related to “commercial service agreements.” More than a decade later, the authorities enabled by that opinion are still unknown to the public, but it’s believed to relate to telecommunication providers.
Rudesill said it was remarkable how effectively the government has managed to conceal the contents of the law. “The classified addenda to statutes and reports that Congress gives the force of law have never been published or leaked,” he said. “Not a single one, over four decades, which is pretty remarkable in this Manning and Snowden era in which … no national security secret can be kept.”
Rudesill argued that reforming the law could be in order. “Taking the pro and con cases, I’ve outlined three broad options for the country regarding secret law: live with the status quo, end it or reform it,” he said. “And if the latter, we need rules of the road.”
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Bradley Moss, an attorney who specializes in national security in Washington, is even more critical. “Secret or classified law is generally anathema to democratic governance and should be the limited exception, never the rule, to how the national security apparatus is managed,” Moss said.
He added that provisions to sunset the classification would be helpful. “Congress should ensure that its classified legislative provisions are subject to existing automatic declassification review requirements that already apply to the executive branch,” Moss said.
Rudesill said reform would need to come through scrutinizing political candidates more on the issue. “Do they think secret law is acceptable in our republic? If so, what is their approach to managing it? If elected, would they make greater or lesser use of secret law than their opponents or predecessors in office? I would love to hear Hillary Clinton, Bernie Sanders, Donald Trump, and congressional candidates answer these questions.”
