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Secret Law And The Threat To Democratic And Accountable Government

Secret Law And The Threat To Democratic And Accountable Government, Hearing before the Subcommittee On The Constitution Of The Committee On The Judiciary United States Senate, April 30, 2008, (S. Hrg. 110-604, DOCID: f:44955.wais, Serial No. J-110-89, ASCII version. Theoretically available as PDF from GPO, but definitely available from FAS: PDF; FAS also has ASCII version).

From the opening statement by Senator Russell Feingold,

The notion of secret law has been described in court opinions and law treatises as “repugnant” and “an abomination”. It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. When it became apparent in the middle of the 20th century that Federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public for the express purpose of preventing a regime of secret law.

That purpose today is being thwarted. Congressional enactments and agency regulations are, for the most part, still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from Congress as well.

Feingold mentions many problems, among them the discovery that the Office of Legal Counsel has taken the position that a President can waive or modify a published Executive order without any notice to the public or Congress–simply by not following it. He says, “abrogating an Executive order without any public notice works a secret change in the law. Worse, because the published order stays on the books, it actively misleads Congress and the public as to what the law is. That has the effect–presumably the intended effect–of derailing any accountability or oversight that could otherwise occur.”

Thanks, and a tip of the hat to Secrecy News!