On Secret Law

I am this afternoon reading an excellent piece called “Coming to Terms with Secret Law” by Dakota S. Rudesill (hat tip to the Federation of American Scientist's Secrecy News). Does the United States have secret laws -- laws kept secret from the public until and unless they are enforced upon us? Yes, Rudesill determines, the evidence suggests that they most likely do.

Is that a problem for the idea of law?

To begin, to have force of law a purported legal instrument must have the quality of what Aquinas termed “a rule and measure” with “the power of obligating.”279 H.L.A. Hart similarly conceives of law in terms of “rules of obligation,”280 while Lon Fuller makes the presence of rules – as opposed to ad hoc adjudication – as a requirement without which a legal system fails.281 Jeremy Waldron observes that “The main demand that law makes on us as subjects is that we comply with it.”282 All of these varying but similar law-as-rule formulations necessitate some level of publication – that is, sharing with officials administering and overseeing it, and sharing with the people who are (and whose government is) subject to it. Lacking publicity, a secret law becomes entirely specific to an individual or institution, one that by definition has both the power to create and remove it. An unpublished law therefore is mere recording of a potentially ephemeral guideline by an entity that is a law unto itself. Law loses its Thomistic essence as a rule, and with that loss also loses its capacity to limit.

... As Kafka posited, it would also over time also take on that appearance: people would come to doubt the existence of the unpublished “secret code” of laws and decide that the law instead is whatever the governing regime does.283 In theory and in practice, law that is entirely unpublished (for example, not even shared with other agencies) decays from the category of law to mere fact.

Is it a problem for the Constitution?

The Constitution is a national security document, written in the wake of the war that won the country its independence. It was significantly motivated by enormous concern among the Framers about the central government’s weakness under the Articles of Confederation compared to foreign empires and the risk of liberty-imperiling war among the states. It provided the central government for the first time the taxing and conscription powers to create a standing army and a single President to direct it. The Constitution is therefore fairly assessed by Akhil Amar as “a war machine” 288 (but not only that). Taken as a whole, the Constitution endeavored to craft a federal governing structure that was strong enough to deter external and prevent internal war, but sufficiently limited through lateral and vertical federalism and individual liberties that its own powers and the ambitions of officeholders would not imperil liberty.289

In this context, one could imagine a Constitution replete with references to secrecy, including the creation of secret laws. Hamilton argued for the controversial proposition of a single national chief executive by emphasizing that such an individual would bring the unity of command and effort to deal with national security threats, acting as necessary with “decision, activity, secrecy, and dispatch.” 290 And yet, the text, structure, and history of the Constitution are hostile to it.

So, what should we do about it? That discussion begins on page 83. Abolishing secret law is one of the options he considers, but not the only one: perhaps by 'grim necessity' we have to live with it for national security reasons, as some argue. It's an interesting discussion that I don't intend to excerpt.

I tend to think that the philosophical and Constitutional problems are more than adequate to decide us here, but ironically there are some among you more inclined to the 'grim necessity' view than am I. I look forward to your thoughts.