The Jamestown Sun - 05/15/2008
On April 30, the Senate's subcommittee on the Constitution held a vitally important hearing on "Secret Law and the Threat to Democratic and Accountable Government," chaired by Sen. Russell Feingold, D-Wis. At issue, ignored by the presidential contenders, is a profound change in the very core of our laws. Said witness Steven Aftergood, secrecy expert at the Federation of American Scientists:
Growing use of secret law "is implicated in fundamental political controversies over domestic surveillance, torture and many other issues directly affecting the lives and interests of Americans ... Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability."
At this very Senate hearing, John R. Elwood, the Office of Legal Counsel's Deputy Assistant Attorney General, provided a startling example of the Bush administration's justification for the imperious essence of secret law. As reported in the May 1 New York Times, Elwood "disclosed a previously unpublicized method to cloak government activities."
The Bush administration believes, he said, "that the president could ignore or modify existing executive orders that he and other presidents have issued without disclosing the new interpretation."
Vladimir Putin would agree with that — but is this America? Responding to Elwood (and his boss, U.S. Attorney General Michael Mukasey), Sen. Sheldon Whitehouse, D-R.I., said that this three-card Monte game (a sidewalk swindle) "turns the Federal Register (that prints these orders) into a screen of falsehoods." Behind the "phony regulations lawless programs can operate in secret."
Since 9/11, the president often says that his actions are based on legal opinions from the Justice Department, particularly from its Office of Legal Counsel. Another witness before the senate subcommittee on the Constitution was Dawn Johnsen, former head of the Office of Legal Counsel.
Concerning secret interpretations of not only executive orders but also of laws, she said the central question is:
"May the Office of Legal Counsel issue binding opinions that in essence tell the president and the executive branch that they need not comply with existing laws — and then not share those opinions, and that legal reasoning, with Congress or the American people? ... This combination — the claimed authority not to comply with the law and to do so secretly — is a terrible abuse of powers, without limits and without checks.
"It clearly is antithetical to our constitutional democracy."
This is also a central question for Hillary Rodham Clinton, Barack Obama and John McCain: Is the next president willing to continue this degree and extent of kingly secrecy, in which the Justice Department will be deeply complicit?
And my direct question to Republican John McCain: Will he continue Mukasey as U.S. attorney general, who has yet to utter a critical word about George W. Bush's unprecedented expansion of presidential powers that is nurtured by "secret law?"
In his Senate testimony, Aftergood zeroed in on the powerful Office of Legal Counsel, whose opinions, he noted, are "generally binding on the executive branch. Many of these opinions may be properly confidential. But others interpret the law authoritatively and in ways that are reflected in government policy."
Aren't the American people entitled to know what these authoritative opinions are that affect our lives — including our security — in so many ways. But, Aftergood cautions us that "most of these opinions are secret, so that the legal standards under which the government is actually operating at any given moment may be unknown to the public."
One of the charges against King George III in the Declaration of Independence was: "altering fundamentally the Forms of our Governments."
The oath of Allegiance for New Citizens requires: "I will support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic ... and bear true faith and allegiance to the same."
But how can that oath be honored if American citizens, new and old, do not know "the legal standards under which the government is actually operating at any given moment?"
Getting back to presidential executive orders, they range, Aftergood points out, from "domestic intelligence activities to protection of human subjects in scientific research. But now it appears that none of these policies are securely established. In fact, any of them may already have been violated (or rather, 'waived') without notice. We just don't know."
Sen. Feingold deserves our thanks for holding this hearing on "secret law." As he says plainly: "It is a basic tenet of democracy that the people have a right to know the law."
Among the enormous responsibilities of the next president and Congress is to restore the rule of law and, not incidentally, the Constitution on which it stands — and let the sunshine in!
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).
ACLU Commends Senator Feingold for Hearing on Secret Law (4/30/2008)
The American Civil Liberties Union today applauded a Senate subcommittee for holding a hearing on the Bush administration's use of secrecy to institute government policy. During the hearing, entitled "Secret Law and the Threat to Democratic and Accountable Government," the Senate Judiciary Subcommittee on the Constitution and its chairman, Senator Russell Feingold (D-WI), heard testimony from legal experts and open government advocates. The hearing focused on the administration's broad interpretation of the law as it relates to government secrecy and counterterrorism policies – including a legal opinion written by former Justice Department Official John Yoo on the use of torture in interrogations. That memo was made public through a Freedom of Information Act (FOIA) request made by the ACLU.
"Government transparency is the cornerstone of democracy," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "This administration has been rewriting the Constitution memo by memo. From what we've seen of the self-serving opinions issued by the Office of Legal Counsel, we can only believe that those that remain secret must equally distort the law in favor of President Bush's agenda. An agenda built on secrecy and overclassification is antithetical to our country's ideals."
The ACLU noted that the Bush administration's track record on government secrecy has been dismal at best. Memos from the Office of Legal Counsel (OLC) outlining legal opinions on torture and wiretapping remain classified despite several congressional calls for disclosure. The administration has also frequently issued executive orders only to amend those policies without publicly acknowledging the changes, removed public documents from the National Archives and created an unusual system of retroactive secrecy by reclassifying previously public information. One of the most public debates on executive power and secrecy has been rooted in the executive's ability to conduct surveillance. Since the revelation of the president's warrantless wiretapping program by the New York Times in December of 2005, that debate has been held publicly in Congress. However a missing piece of that debate is a still-secret OLC memo.
Last year, the ACLU filed a request with the Foreign Intelligence Surveillance Court for orders and legal papers discussing the scope of the government's authority to engage in the secret wiretapping of Americans. In December, a FISC judge ruled that the court would not conduct an independent review to determine whether or not the orders and legal papers were properly determined to be classified.
In recent years, the ACLU has engaged in a broad effort to uncover information about the Bush administration's torture and surveillance policies. In October 2003, the ACLU filed a FOIA request for records concerning the treatment of prisoners in U.S. custody abroad. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit enforcing the request – including the 2003 Yoo memo which stated that the president could authorize the torture of prisoners. Many critical documents, however, remain secret. Among the documents that still have not been released are an OLC memo listing interrogation methods for use by the CIA, and a Presidential Directive authorizing the CIA to set up secret detention facilities overseas.
"This administration's view of executive power is hostile not only to the Constitution but to our entire system of checks and balances," continued Fredrickson. "The president is bound by the same laws that govern every American citizen and to claim otherwise is outrageous. If nothing else, warping the role of the executive will be this administration's legacy. We applaud Senator Feingold for holding this hearing."
To read more about the ACLU's work on these issues, go to:
www.aclu.org/fisa
www.aclu.org/torture
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