So important was an April 30 hearing before the Senate Judiciary Subcommittee on the Constitution that it should have been on front pages around the country. Titled "Secret Law and the Threat to Democratic and Accountable Government" and chaired by Sen. Russ Feingold, Wisconsin Democrat. it focused on an issue ignored by the presidential contenders that has deeply weakened our rule of law.
Said witness Steve Aftergood, secrecy authority 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, Mr. 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 Mr. Elwood (and his boss, U.S. Attorney General Michael Mukasey), Sen. Sheldon Whitehouse, Rhode Island Democrat, 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 September 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 Judiciary 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 Sens. Hillary 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 Mr. McCain: Will he continue Mr. Mukasey as U.S. attorney general, who has yet to utter a critical word about President Bush's unprecedented expansion of presidential powers that is nurtured by "secret law?"
In his Senate testimony, Mr. 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, Mr. 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, Mr. Aftergood points out that they range 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."
Mr. 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 will be to restore the rule of law, and not incidentally, the Constitution on which it stands — and let the sunshine in!