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
Download Video
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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