Opening
Statement of U.S. Senator Russ Feingold
Hearing on “Secret Law and the Threat to Democratic and Accountable
Government”
Senate Judiciary Committee, Subcommittee on the Constitution
As
Prepared For Delivery
April 30, 2008
“More than any other
Administration in recent history, this Administration has a penchant
for secrecy. To an unprecedented degree, it has invoked executive privilege
to thwart congressional oversight and the state secrets privilege to
shut down lawsuits. It has relied increasingly on secret evidence and
closed tribunals, not only in Guantanamo but here in the United States.
And it has initiated secret programs involving surveillance, detention,
and interrogation, some of the details of which remain unavailable today,
even to Congress.
“These examples are
the topic of much discussion and concern, and appropriately so. But
there is a particularly sinister trend that has gone relatively unnoticed
– the increasing prevalence in our country of secret law.
“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. And
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 the public, and too often from Congress as well.
“The recent release
of the March 2003 John Yoo torture memorandum has shone a sobering light
on this practice. A legal interpretation by the Justice Department’s
Office of Legal Counsel, or OLC, binds the entire executive branch,
just like a regulation or the ruling of a court. In the words of former
OLC head Jack Goldsmith, ‘These executive branch precedents are
“law” for the executive branch.’ The Yoo memorandum
was, for a nine-month period in 2003 until it was withdrawn by Mr. Goldsmith,
the law that this Administration followed when it came to matters of
torture. And of course, that law was essentially a declaration that
few if any laws applied.
“This entire memorandum
was classified and withheld from Congress and the public for years on
the claim that it contained information that could not be disclosed
without harming national security. Now it may be appropriate, prior
to public disclosure of an OLC memorandum, to redact information about,
for example, specific intelligence sources or methods. But as we now
know, this 81-page document contains no information about sources, methods,
or any other operational information that could compromise national
security. What it contains is a shocking glimpse of the ‘law’
that governed the Administration’s conduct during the period this
memo was in effect. And the many, many footnoted references to other
OLC memos we’ve never seen suggests that there is an entire regime
of secret law that may be just as shocking.
“Another body of secret
law is the controlling interpretations of the Foreign Intelligence Surveillance
Act that are issued by the Foreign Intelligence Surveillance Court.
FISA, of course, is the law that governs the government’s ability
in intelligence investigations to conduct wiretaps and search the homes
of people in the United States. Under that statute, the FISA Court is
directed to evaluate wiretap and search warrant applications and decide
whether the standard for issuing a warrant has been met – a largely
factual evaluation that is properly done behind closed doors. But with
the evolution of technology and with this Administration’s efforts
to get the Court’s blessing for its illegal wiretapping activities,
we now know that the Court’s role is broader, and that it is very
much engaged in substantive interpretations of the governing statute.
“These interpretations
are as much a part of this country’s surveillance law as the statute
itself. Without access to them, it is impossible for Congress or the
public to have an informed debate on matters that deeply affect the
privacy and civil liberties of all Americans. While some aspects of
the FISA Court’s work involve operational details and should not
be publicly disclosed, I do not believe that same presumption must apply
to the Court’s purely legal interpretations of what the statute
means. Yet the Administration has fought tooth and nail against public
disclosure of how the Court interprets the law, and has strictly limited
even congressional access to some of those decisions.
“The Administration’s
shroud of secrecy extends to agency rules and executive pronouncements,
such as Executive Orders, that carry the force of law. Through the diligent
efforts of my colleague Senator Whitehouse, we have learned that OLC
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.
“Now, none of us disputes
that a President can withdraw or revise an Executive Order at any time;
that’s every President’s prerogative. But 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.
“And that gets us to
the heart of the problem. In a democracy, the government must be accountable
to the people, and that means the people must know what their government
is doing. Through the classification system and the common law, we’ve
carved out limited exceptions for highly sensitive factual information
about military operations, intelligence sources and methods, nuclear
programs, and the like. That is entirely appropriate and important to
protecting our national security. But even in these areas, Congress
and the courts must maintain some access to the information to ensure
that the President is acting in accordance with the law and the Constitution.
And when it comes to the law that governs the executive branch’s
actions, Congress, the courts, and the public have the right and the
need to know what law is in effect. An executive branch that operates
pursuant to secret law makes a mockery of the democratic principles
and freedoms on which this country was based.
“We’ll hear today
from several experts who can help us understand the extent of this problem
and help us begin to think about solutions.”
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