Wednesday, May 20, 2015
Jonathan M. Manes, Yale Law School, has published Secret Law. Here is the abstract.
Recent disclosures of the secret legal rules governing a variety of government programs — from electronic surveillance to targeted killing — have demonstrated that secret law not only exists, but is a regular feature of governance in this country, particularly in matters of national security. While the government is surely entitled to carry out certain functions in secret, the notion that the very rules that empower and constrain the government could themselves be secret is deeply unsettling, raising profound concerns about government’s accountability, the public’s role in a democracy, and the protection of individual liberties.The full text is not available from SSRN.
While there is a significant literature on the government’s authority to keep secrets in general, the government’s power to keep the law itself hidden from the public is a special problem that has thus far received little scholarly attention. This Article is the first to offer a general examination of the phenomenon of secret law in the context of national security, describing its place in the existing transparency regime, providing an account of the competing normative commitments that animate debates about secret law’s legitimacy, and offering proposals rein in the practice of secret law.
The Article argues that existing institutional arrangements give the executive branch significant discretion to keep law secret. This creates an equilibrium that produces too much secret law, and fails to adequately account for strong countervailing interests in transparency. Drawing on contemporary examples of secret laws governing surveillance, watch-listing, and targeted killings, the Article proposes both institutional and substantive reforms that would result in a more defensible and stable legal equilibrium that produces fewer problematically secret laws. In particular, it argues that Courts should adopt a clear statement rule against secret law so that law must be disclosed unless secrecy is specifically authorized by Congress. Such a rule would result in a better accommodation between secrecy interests and transparency values by requiring inter-branch contestation and agreement on the scope of secret law. Moreover, a presumption against secret law is grounded in Constitution’s text and structure, notably the Presentment and Journal Clauses, and the First Amendment.