Editor’s note: This article is part of the Just Security Symposium on Harold Hongju Koh’s “The National Security Constitution in the 21st Century”.
Professor Harold Hongju Koh’s call for Congress to impose greater transparency regarding secret law is as important and perhaps even more timely than many of his other thoughtful recommendations in his landmark new book The National Security Constitution for the 21st Century. Without question, Congress should as Koh urges finally amend the Insurrection Act, pull back statutory emergency powers, and rewrite the War Powers Resolution (WPR). But ensuring that any secret law-making in the executive branch in particular will get disinfecting sunlight is uniquely important because of the potential for secret law – i.e., unpublished law – to give legal cover for overbroad, unaccountable, and unsustainable uses of these and other laws.
Among Koh’s many accomplishments is his multiple decades of leadership in advocating for transparency, against the backdrop of the federal government’s massive secrecy apparatus – one that includes secret law in all three branches of government. Below, I emphasize first that secret law endures despite claims by legislators a decade ago to have eradicated it. Second, looking at recent years and those ahead, I maintain that two developments – the long-term trend of expansion of executive power and in the nearer term abundant reason to be concerned that President re-elect Donald Trump’s second term may be problematic from a rule of law standpoint – make it imperative that Congress at the first opportunity follow Koh’s recommendation to legislate transparency regarding the secret law generated by the U.S. Department of Justice. Although the present moment does not offer much hope of congressional action, this article closes by emphasizing that this important initial step would serve the interests of both political parties, and that it can build momentum for comprehensive reform of the limited but very real, useful, and problematic phenomenon of secret law in America.
The Enduring Problem of Secret Law
In the 2000s and 2010s, secret law got a good deal of public attention and a degree of lawmaker attention thanks to two waves of scandal that had secret lawmaking at their core. The first involved interrogation (discussed in Koh’s book at 157-63) and surveillance in the years after the 9/11 terrorist attacks in facial violation of publicly-viewable law, resting on highly classified and deeply flawed legal memos from the Office of Legal Counsel (OLC) at DOJ. Other secret memos legally greenlit detention of suspected terrorists and domestic use of the military using similarly poor legal theories. The second wave of scandal centered on revelation by former NSA contractor Edward Snowden in 2013 of expansive U.S. surveillance activities. The colossal Snowden leaks began with an order marked TOP SECRET//SI//NOFORN by the Foreign Intelligence Surveillance Court (FISC) that cited Sec. 215 of the USA PATRIOT Act of 2001 as authority for what the public learned was suspicionless, daily, ongoing bulk collection of the phone records of millions of Americans – one that reflected secret court endorsement of a classified reinterpretation of the text of the statute by DOJ during the George W. Bush and Obama administrations. Today, secret law is out of the headlines for now, but the phenomenon endures. This despite claims by legislators (for examples see my study of secret law here, page 305 and note 224) to have solved the problem in the 2015 surveillance law that Congress passed in response to Snowden’s revelations.
What is secret law? As my scholarship analyzing the public record of this under-studied phenomenon has made clear, it is not as alien to the United States and its legal system as the Kafka-esque term might suggest. I have often put it this way:
By using the term “secret law”… I do not mean to suggest anything nefarious. Having served in all three branches of government, including in the Intelligence Community, I have the greatest regard for the public servants who draft and implement secret law, and for the very real national security considerations that drive its creation. I mean only that there is a body of law that meets the following definition: legal authorities that require compliance that are classified or otherwise unpublished.
Secret law exists in both classified and unclassified-but-unreleased form, and operates amid clashing rule of law values. In its defense, secret law can reflect the good faith desire of public servants to bring the rule of law to the darkest corners of secret national security activities, and to receive confidential legal advice on classified matters. Another “good government” value undergirding secret law is deliberation space: ensuring that lawyers at OLC and elsewhere can provide candid, confidential legal advice. A third pro-secrecy value is national defense: not tipping off the bad guys to the United States’ secret capabilities or intentions in the process of making sure that the law is followed. On the other hand, powerful considerations cut against the very legitimacy of secret law and the practical advisability of its use. Secrecy about how a branch of government understands the law presents an inherent threat to the ability of the people to be self-governing in both personal conduct and policy preference (and voting) senses; disrupts the feedback loop among the three branches of government that is central to constitutional checks-and-balances and separation of powers; and insulates from review (and correction) unsustainable legal claims, error, and abuse of authority, allowing public officials to escape accountability for embarrassing lawlessness, incompetence, and corruption.
My three-branch analysis of the public record of secret law in America and the work of colleagues including Elizabeth Goitein and Ashley Deeks have demonstrated that secret law is a limited but meaningful exception to the general rule in United States that the law is public. Outside of my ongoing research, Congress’s secret law has gotten almost zero attention, but yet for well over 40 years the nation’s legislature has been using cryptic words in annual intelligence and defense Public Laws to create secret law in the never-published pages of classified documents kept in safes in secure rooms in the Capitol. Executive branch secret law includes classified and otherwise unreleased DOJ memos that are the internal law of the executive branch, classified presidential executive orders, together with secret international agreements and an ocean of agency-level memos and directives. The federal judicial branch’s secret law ranges from unpublished regular court opinions to the classified orders of the Foreign Intelligence Surveillance Court (FISC).
“Greater transparency is most urgently needed in the area of ‘secret law,’” writes Koh. Part of the reason is that Congress’s reform efforts have typically been ad hoc responses to the scandal of the day. Resulting legislation has been issue-specific, spotty, and inconsistent rather than principled and comprehensive. Members of Congress who were shocked by STELLARWIND, the post-9/11 warrantless surveillance program, and creative reconstruction of Sec. 215 in secret crowed that transparency measures in the USA FREEDOM Act of 2015 killed secret law, but the reality is different. Congress there imposed transparency requirements mainly on one branch, the judiciary, via a requirement that going forward the FISC’s secret law be published in full, in redacted form, or in summary. True, Congress a few years earlier required the president to share the legal rationale for super-secret covert actions (“black ops”), but otherwise Congress has legislated nothing meaningful to surface the vast subterranean ocean of executive branch secret law. Most of the limited progress lately has been made via FOIA efforts by organizations such as the Knight First Amendment Institute at Columbia and the Brennan Center at NYU. Their document requests and litigations have yielded valuable documents, disclosures, and indexes, but again the secret law problem in the executive branch is thousands of miles (and documents) from being solved. And Congress has done precisely nothing to publish even one of the classified legislative addenda that it has annually given legal force in part or in full since 1978.
Growing Need for Transparency in Our Times
Koh (on page 323) urges Congress to pass the DOJ OLC Transparency Act , which would require prompt publication of all future OLC opinions, and create a process for publication of past opinions. This entirely sensible law would reduce the ability of the executive branch to classify or otherwise withhold secret legal interpretations of the kind that the George W. Bush and Obama administrations used to depart from public understanding of the law, ones that when leaked were embarrassing, undermined public trust, and were subsequently rejected by all three branches. At any moment in our nation’s history, Congress would be wise to follow Koh’s recommendation. Accountability of government and proper functioning of constitutional checks and balances – which presume a feedback loop involving the three branches and the public – are inevitably imperiled if the federal branch uniquely able to implement the law can also reimagine and hide the law.
Transparency regarding executive branch secret law is especially imperative in our times.
One reason is a phenomenon about which Koh across his scholarly career has written extensively (in his new book, see for example pages 1-6): the long-term expansion of executive power. The Founders left a fair amount of ambiguity in the Constitution as to how separation of powers would operate. Even so, there is no question that the executive of the Twentieth and Twenty-First Centuries acts amid a constitutional equilibrium tilted far more strongly to the executive than at the Founding and in the early years of a national republic in which the Framers gave Congress primary placement in Article I of the Constitution. This broad pattern in American governance has been sequentially accelerated by the New Deal, World War II, Cold War, and in our times spiraling partisanship and congressional gridlock.
As Koh writes, especially pronounced expansion of executive power in foreign affairs and national security has been the result of executive willingness to act, congressional (and public) acquiescence, and judicial deference and avoidance doctrines. Koh in his new volume emphasizes the stronger merits of the Youngstown (1952) vision of shared power over national security and that statutes generally bind presidents, versus an overbroad Curtiss-Wright (1936)-based vision of presidential supremacy by mere invocation of national security needs. Or, by mere invocation of the case’s name: “Curtiss-Wright so the president is right” is catchy, but bad constitutional law set against the Supreme Court’s siding with statute over executive actions in a long line of landmark cases including Barreme (1804), Youngstown (1952), and Hamdan (2006). Congress’s constitutional ability to authorize, structure, limit, or cancel executive action is meaningful only when used, however, and in recent decades the nation’s legislature has let presidents of both parties become ever more unilateral in their exercise of their Article II constitutional authority as well as statutory delegations of authority. As demonstrated by the post-9/11 and Snowden-era revelations, the danger to the constitutional equilibrium becomes only greater when legal secrecy is operative. Secret law allows the executive branch to conceal from the public and Congress its understandings and reconstructions of the law, and then act in the real world (including clandestinely) before the other branches or public are the wiser that the Article II branch has quietly decided that it is no longer bound by how the law reads in the sunlight.
The impending second Trump presidency provides a second source of urgency for Congress to legislate transparency regarding executive branch secret law in service of non-partisan public, congressional, and constitutional equities.
There is good reason for every Member of Congress to be concerned that the second Trump administration could be especially willing to depart from current constitutional norms and settled expectations of the law’s meaning, due to an inter-related array of factors. These include abundant evidence of infidelity to the Constitution and the rule of law (most notably his well-documented multi-prong effort to overturn the 2020 election and subsequent judgements for sexual abuse and fraud, powerful evidence presented in two federal criminal indictments, and conviction on 34 felony counts), an expansive agenda (including military-assisted mass deportations) that will generate many complicated legal questions and incentives to read presidential powers aggressively, clear indications that the Trump administration will seek to curtail the traditional independence of the Justice Department that possesses expansive ability in “law of the executive branch” legal memos to set and revise interpretations of the law, Trump’s stated belief that under Article II of the Constitution he can do whatever he wants, and expectations that Trump will seek to assert a level of personal control over executive branch personnel without precedent in living memory (via conversion of thousands of civil service positions into new “Schedule F” positions subject to firing for political reasons, mass recess appointments, or emplacement of loyalists in top positions on an acting basis without Senate confirmation under expansive authority in the Federal Vacancies Reform Act).
Individually and collectively these considerations – especially when paired with long-term growth in executive power and the general obligation of personnel to comply with orders that are not clearly illegal – reasonably raise questions about the incoming administration’s fidelity to the law as it is publicly understood. That in turn super-charges the risks to the constitutional order associated with executive use of secret law, and augers strongly for enhanced transparency.
The post-9/11 classified OLC memos during the George W. Bush administration were authored in less partisan times but nevertheless reflect several of the factors just mentioned, and in that way stand as a cautionary tale and potential bad precedent. After 9/11, a president who had the benefit of the executive branch’s massive institutional and secrecy capabilities ordered agencies to go around statute on the basis of an overbroad Article II presidential supremacy theory of the Constitution, one deployed in secret OLC memos that radically reinterpreted the law and which were crafted by presidential appointees (most notably former OLC lawyer John Yoo) who shared the Chief Executive’s overbroad claims of presidential authority. Before Congress, the courts, or voters knew it, deeply secret executive branch law was operating outside of expectations of the law based on the law before the public, yet provided sufficient basis for federal agencies to surveil Americans and to detain and torture suspected terrorists in violation of statute.
Of course, no one knows what the next four years will hold. Trump is a politician, and secret law scandals hurt the political capital of his predecessors George W. Bush and Obama during their second terms. Also, many controversial things that once-and-future President Trump and those around him said before and during Trump’s first term proved a poor guide to what he actually did. Recall, too, that Trump did not ultimately pursue a number of dangerous and legally problematic actions urged by associates and supporters during the run-up to the Jan. 6, 2021, attack on the Capitol, including imposition of martial law and having the military seize voting machines. And, it is entirely possible that now re-elected Trump will feel less wedded to often extreme campaign rhetoric that was driven at least in part by criminal cases that his re-election is largely sweeping away.
A Time to Act
Whatever the Trump second term holds, Koh has it right that Congress needs to act to require disclosure of all OLC secret law. Congress cannot do its constitutional work of oversight and lawmaking responsibly, and the electorate cannot cast informed votes, without knowledge of how the president and his subordinates are interpreting and implementing the law. Although there is little desire today among Republicans in Congress to do anything Trump might find distasteful, it is important to remember that his party in Congress did at times oppose him during his first term (on war powers, for example) and that better transparency rules would benefit them when the wheel turns and Democrats next sit atop the executive branch.
Whenever the politics might allow it, legislating a requirement for DOJ to publish its secret law would build momentum for additional steps to patch the many gaps in the transparency regime regarding secret law. A sensible follow-on would be expanding the reporting requirement to the entire executive branch, or at least apply the rules that Congress legislated on the FISC in 2015: going forward any binding new construction of law must either be published in full, released with redactions to sensitive facts (sources and methods of intelligence collection, names of persons or classified programs, weapons capabilities, etc.), or summarized in unclassified form. And then the files need to be cleaned out, with this approach applied to all prior unpublished binding opinions in the executive branch.
Next up would be legislating a uniform set of principles and rules to govern secret law across the entire federal government. I have set out such rules for the road in my scholarship and pieces in Just Security and other publications. These include a Public Law Supremacy Rule (secret interpretation and new secret laws must defer to public understanding of public law), an Anti-Kafka Rule (no secret criminal law), a Shallow Secrecy Principle (the public must be notified whenever new secret law is created, in a manner that does not divulge sensitive information but allows the public to expect that their congressional representation will go behind the curtain and have a look), an Anti-Inertia & Accountability Rule (all secret law has a short sunset date, requiring today’s public officials to act affirmatively to renew it and thereby take ownership), a Plurality of Review Principle (secret law gets multiple stages of review in each branch, and all of it is shared with Congress), and creation of a Secret Law Corps (a carefully vetted cadre of non-partisan lawyers in all three branches cleared to read all secret law, to ensure that the legal process regarding secret law can unfold with actual full knowledge of the law).
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The future of American governance, especially in the national security space where power and potential consequences are at their apex, today is uncertain. Some of Trump’s first term past will likely be prologue. The second term is likely to hold surprises too – in actions taken, not taken, and due to secrecy only revealed at a late date or even after Trump leaves office.
Whatever happens, additional transparency will only be for the better under Trump and his successors. Congress, the courts, and the public share with the executive branch, lawyers, and other professionals the common responsibility of maintaining the rule of law. Each of these actors cannot do that civic work without knowing how the president and his subordinates understand and are applying the law.
Koh always has much to teach, and his excellent update to his landmark work The National Security Constitution (1987) is enormously instructive and provocative of reflection, further research, and action. The Congress he has informed so many times as a witness and advisor should move swiftly to implement his call for greater transparency. That starts but ought not end with surfacing for Congress the classified precedents of the “Supreme Court of the executive branch,” DOJ’s Office of Legal Counsel.