dana west
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Sep-16-2002
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Message #114533 posted by dana west (Info) May 13, 2008 00:14:24 ET
Government in Secret
The Yoo memo is just one example of Bush's hidden laws.
by Russ Feingold
May 8, 2008
The Bush administration recently announced it will allow select members of
Congress to read Justice Department legal opinions about the CIA's
controversial detainee interrogation program that have been hidden from
Congress until now. But as the administration allows a glimpse of this
secret law, and it is law, we are left wondering what other laws it is
still keeping under lock and key.
It's a given in our democracy that laws should be a matter of public
record. But the law in this country includes not just statutes and
regulations, which the public can readily access. It also includes binding
legal interpretations made by courts and the executive branch. These
interpretations are increasingly being withheld from the public and
Congress.
Perhap s the most notorious example is the recently released 2003 Justice
Department memorandum on torture written by John Yoo. The memorandum was,
for a nine-month period in 2003, the law that the administration followed
when it came to matters of tort ure. And that law was essentially a
declaration that the administration could ignore the laws passed by
Congress.
The content of the memo was deeply troubling, but just as troubling was the
fact that this legal op inion was classified and its content kept secret for
years. As we now know, the memo should never have been classified because it
contains no information that could compromise national security if released.
In a Senate hearing that I chaired April 30, th e top official in charge of
classification policy from 2002 to 2007 testified that classification of
this memo showed "either profound ignorance of or deep contempt for" the
standards for classification.
The memos on torture policy that have been released or leaked hint at a much
bigger body of law about which we know virtually nothing. The Yoo memo was
filled with references to other Justice Department memos that have yet to
see the light of day, on subjects including the government's ability to
detain U.S. citizens without congressional authorization and the
government's ability to bypass the 4th Amendment in domestic military
operations.
Another body of secret law involves the Foreign Intelligence Surveillance
Act (FISA). In 1978, Congress created the special FISA court to review the
government's requests for wiretaps in intelligence investigations, which
is, and should be, done behind closed doors. But with changes in
technology and with this administration's efforts to expand its
surveillance powers, the court today is doing more than just reviewing
warrant applications. It is issuing important interpretations of FISA that
have effective ly made new law.
These interpretations deeply affect Americans privacy rights, and yet
Americans don't know about them because they are not allowed to see them.
Very few members of Congress have been allowed to see them either. When the
Senate rec ently approved some broad and controversial changes to FISA,
almost none of the senators voting on the bill could know what the law
currently is.
The code of secrecy also extends to yet another body of law: changes t o
executive orders. The administration takes the position that a president can
"waive" or "modify" a published executive order without any public
notice, simply by not following it. It's every president's
prerogative to change an executive order, but doing so without public notice
works a secret change in the law. And, because the published order stays on
the books, Congress and the public have no idea that it's no longer in
effect. We don't know how many of these covert changes have been made by
this administration or, for that matter, by past administrations.
No one questions the need for the government to protect information about
intelligence sources and methods, troop movements or weapons systems. But
there's a big difference be tween withholding information about military or
intelligence operations from the public and withholding the law that governs
the executive branch. Keeping the law secret doesn't enhance national
security, but it does give the government free rein to operate without
oversight or accountability. Even the congressional intelligence committees,
which are supposed to oversee the intelligence community, have been denied
access to some of these legal opinions.
Congress should pass legislation to require the administration to alert
Congress when the law created by Justice Department opinions ignores or even
violates the laws passed by Congress, and to require public notice when it
is waiving or modifying a published executive order. Congress and the public
shouldn't have to wonder whether the executive branch is following the
laws that are on the books or some other, secret law.
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