Search This Blog

Monday, March 11, 2013

Transparency and Secret Laws

Many posts have discussed the role of transparency in deliberative democracyMcClatchy Newspapers reports:
President Barack Obama has relied on state secrets and secret laws to make national security decisions with little congressional or public oversight much as his predecessor did, according to a report being released Sunday by a liberal government watchdog group.

The Center for Effective Government’s study on transparency finds that Obama has issued important open government policy reforms in his first term, but that implementation is inconsistent across federal agencies despite his claim of being the most open president in history.

“While the Obama administration deserves praise for the important work it has done to build a platform for open government in its first term, the job is unfinished,” according to the report.

The center, formerly called OMB Watch, issued the report at the start of Sunshine Week, an effort by civics groups, governments and newspapers to promote transparency in government across the nation. A copy was sent to the White House, but officials there did not respond to a request for comment.

The 50-page study says the area most in need of improvement is national security. The White House has withheld decisions and documents that have the force of law, labeled documents as classified even if they do not need to be and aggressively prosecuted whistleblowers, bringing six cases against employees for leaks compared to only three known previous cases since 1917.

And the administration, like the George W. Bush administration before it, has sought the dismissal of cases against the U.S. government claiming entire topics are privileged, not just specific records. For example, it invoked the privilege to dismiss a case challenging the targeting of U.S. citizen and alleged terrorist Anwar al Awlaki, killed by a drone in Yemen in 2011.

Bush was criticized for authorizing a secret domestic spying program and military tribunals without court involvement after the 2001 terrorist attacks. Obama has been questioned for authorizing the military’s use of drones to kill suspected terrorists overseas, including Americans. After pressure, the White House recently released to lawmakers justifications for the killings.
The first line of the article might be puzzling.  Secret laws?  The report says: "Secret laws are regulations, operational legal interpretations, policies, or directives that have been kept hidden from the public and the persons to whom they apply."  And as Kevin Drum explained at The Washington Monthly back in 2005, there are also secret acts of Congress.
Do we have secret laws in America? Apparently we do, as I wrote incredulously on Saturday. We actually have federal statutes that no one is allowed to know about.
Am I a rube for not knowing about this? And for being astonished that such a thing is possible? Maybe, but Bruce Bartlett, who has far more experience with the highways and byways of Washington DC than I do, tells me via email that he too was taken aback when he first found out about secret laws:
I first heard about secret laws some years ago when I worked at the White House. One of the White House lawyers told me he had been ordered to make some alien a U.S. citizen ASAP — not just give him a green card, but grant him citizenship. I don’t recall the details of why. Anyway, the lawyer said that short of going through the usual drill, only Congress could grant citizenship. But for some reason the White House chief of staff was hot on this matter and told the lawyer that he had better find a way or start cleaning out his office.
It was then that the lawyer discovered these secret laws. He told me that there is a whole U.S. Code section that is simply blank for this reason. He said most of these laws had been passed during World War II. Apparently, one gave the president the authority to grant citizenship under certain circumstances that, thankfully for the lawyer, applied in this case. So my lawyer friend was able to keep his job. Weird.