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The article and the report it refers to describe multiple categories of directives and opinions/judgements that apparently do have the force of law. Those cate

The article and the report it refers to describe multiple categories of directives and opinions/judgements that apparently do have the force of law. Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of classified reports by reference, bestowing on them the status of law." https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law.pdf https://www.brennancenter.org/sites/default/files/publicatio... I think we need a law to ensure that all such documents are published in a timely manner.

rayiner 10y ago
National security directives set policy and instruct government bodies. They're an exercise of the President's plenary authority to tell the executive branch what to do, not lawmaking. OLC legal interpretations are legal advice, not laws. Federal agencies may rely on those interpretations to take certain actions, but they cannot regulate private conduct. Congressional-executive agreements pertain to controlling trade policy, an area over which Congress and the President have plenary authority to begin with. Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA. Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.
- pc2g4d 10y ago
  Interesting points, but I don't see how you can argue that FISA decisions do not have force of law. It's a _court_ applying and interpreting law, which we all know (Roe v. Wade, Brown v. the Board, etc.) can have as sweeping and definite of legal consequences as any statute passed by Congress.
  - rayiner 10y ago
    While court precedents can have the effect of creating law, FISA decisions don't regulate private conduct. Also, like many courts, FISA publishes both precedential and non-precedential opinions. It's not clear that there are any precedential FISA opinions that haven't been published.
  - deleted 10y ago
    [deleted]
- chishaku 10y ago
  The report intentionally uses the term "secret law" in quotes. I'm not arguing that the above items are "laws" by the technical definition. > Now, you can say it would be great if these things were all public. I happen to agree. In any case, we're agreed on the main point of the article and the point of my original comment.
tptacek 10y ago
An acid test: is a federal judge bound by an OLC legal interpretation? I believe the answer to be a clear "no". How can it then be "law"?
- chishaku 10y ago
  Please read the report. The term "secret law" is purposefully used with quotes. While not all of the above categories are technically "laws," they often have the force of law and are significantly influencing the actions of the government and its citizens. Do you think that given the potential impact on such issues as torture, extrajudicial killings, and mass surveillance, this growing body of "secret law" should see the light of day? This is the key question.
  - tptacek 10y ago
    If a law-alike like an OLC opinion isn't recognized by judges, how can it have "the force of law"? Are the General Orders of the Chicago Police Department --- the giant binder of rules the CPD sets for the conduct of its employees --- law under this definition?
    - chishaku 10y ago
      If an OLC opinion is the difference between torture and no torture or extrajudicial killing and no extrajudicial killing, it should be public. If an elected official cites an OLC opinion as justification for torture in front of a judge and has a fighting chance of being vindicated, then I consider that OLC opinion to have the "force of the law" irrespective of any conventional technical definition. In any case, the argument over semantics is uninteresting. The key question posed by the report and upon which my original comment hinges is whether or not the directives, opinions, judgements, and bills informally described as "secret law" should be made transparent. I think they should. I don't know what you think because you didn't respond to the question.
      - tptacek 10y ago
        We can agree that OLC opinions authorizing torture are bad without agreeing that they are law. One of the things that makes those OLC decisions bad is that they are lawless: they contravene the law. (The other, obviously, is that torture is inherently wrong). Government officials probably cannot cite an OLC opinion in court in front of a judge as justification for torture. That's what my first comment on this thread pointed out. OLC opinions do not create binding precedent, any more than Wesley Snipes's tax lawyer's opinions did for his case.

rayiner 10y ago

National security directives set policy and instruct government bodies. They're an exercise of the President's plenary authority to tell the executive branch what to do, not lawmaking. OLC legal interpretations are legal advice, not laws. Federal agencies may rely on those interpretations to take certain actions, but they cannot regulate private conduct. Congressional-executive agreements pertain to controlling trade policy, an area over which Congress and the President have plenary authority to begin with. Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA. Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.

pc2g4d 10y ago
Interesting points, but I don't see how you can argue that FISA decisions do not have force of law. It's a _court_ applying and interpreting law, which we all know (Roe v. Wade, Brown v. the Board, etc.) can have as sweeping and definite of legal consequences as any statute passed by Congress.
- rayiner 10y ago
  While court precedents can have the effect of creating law, FISA decisions don't regulate private conduct. Also, like many courts, FISA publishes both precedential and non-precedential opinions. It's not clear that there are any precedential FISA opinions that haven't been published.
- deleted 10y ago
  [deleted]
chishaku 10y ago
The report intentionally uses the term "secret law" in quotes. I'm not arguing that the above items are "laws" by the technical definition. > Now, you can say it would be great if these things were all public. I happen to agree. In any case, we're agreed on the main point of the article and the point of my original comment.

tptacek 10y ago

An acid test: is a federal judge bound by an OLC legal interpretation? I believe the answer to be a clear "no". How can it then be "law"?

chishaku 10y ago
Please read the report. The term "secret law" is purposefully used with quotes. While not all of the above categories are technically "laws," they often have the force of law and are significantly influencing the actions of the government and its citizens. Do you think that given the potential impact on such issues as torture, extrajudicial killings, and mass surveillance, this growing body of "secret law" should see the light of day? This is the key question.
- tptacek 10y ago
  If a law-alike like an OLC opinion isn't recognized by judges, how can it have "the force of law"? Are the General Orders of the Chicago Police Department --- the giant binder of rules the CPD sets for the conduct of its employees --- law under this definition?
  - chishaku 10y ago
    If an OLC opinion is the difference between torture and no torture or extrajudicial killing and no extrajudicial killing, it should be public. If an elected official cites an OLC opinion as justification for torture in front of a judge and has a fighting chance of being vindicated, then I consider that OLC opinion to have the "force of the law" irrespective of any conventional technical definition. In any case, the argument over semantics is uninteresting. The key question posed by the report and upon which my original comment hinges is whether or not the directives, opinions, judgements, and bills informally described as "secret law" should be made transparent. I think they should. I don't know what you think because you didn't respond to the question.
    - tptacek 10y ago
      We can agree that OLC opinions authorizing torture are bad without agreeing that they are law. One of the things that makes those OLC decisions bad is that they are lawless: they contravene the law. (The other, obviously, is that torture is inherently wrong). Government officials probably cannot cite an OLC opinion in court in front of a judge as justification for torture. That's what my first comment on this thread pointed out. OLC opinions do not create binding precedent, any more than Wesley Snipes's tax lawyer's opinions did for his case.