Trump and the Dangers of Secret Law

Published on

Friday, January 13, 2017

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Brennan Center for Justice

by

Elizabeth Goitein

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Donald Trump will soon inherit the secret laws generated under the Bush and Obama administrations. (Photo: ThinkStock)

President-elect Trump has disdained the rule of law when it comes to national security, vowing to reinstitute torture and suggesting that the military should target terrorists’ families. In response, President Obama recently released a report describing the legal and policy framework for United States military operations. The idea is simple: If the rules are made public, it will be easier to hold the Trump administration accountable for violations—or to spot when the rules have changed.

Obama is undoubtedly correct in calculating that legal transparency will help safeguard the rule of law. But his initiative begs the question: why stop at military operations?  

Since the attacks of 9/11, every area of national security policy has increasingly been regulated by secret law. For instance, much of the authority to conduct mass surveillance, and the limits that apply, are set forth in classified orders of the Foreign Intelligence Surveillance Court (or “FISA Court”). In 2013, Edward Snowden revealed that this court had secretly interpreted the Patriot Act to allow the collection of nearly every American’s phone records.

A 2015 law ended the bulk collection program and brought some transparency to the FISA Court’s rulings. But other mass surveillance programs remain intact—and around 30 of the court’s most significant opinions are still secret.

National security policies are also governed by secret opinions of the Justice Department’s Office of Legal Counsel (OLC). OLC is best known for the infamous “torture memos” of the Bush presidency, which concluded that the laws prohibiting torture did not apply to the interrogation of suspected terrorists. These interpretations greenlighted the CIA’s use of barbaric techniques like waterboarding, “stress positions,” and sleep deprivation.

Obama ended the CIA’s use of torture and forbade executive officials from relying on Bush-era OLC opinions on interrogation. But Trump could reverse this directive, either openly or secretly. And, while Obama publicly released several torture memos, recently released Justice Department documents show that at least 74 Bush-era OLC opinions on subjects including detention, interrogation, and intelligence gathering are still classified.

Secret law is worrisome under any administration, let alone one headed by an admirer of Vladimir Putin. It allows the government to evade the democratic lawmaking process, and to give itself powers that conflict with the electorate’s wishes—or with published laws. Even when secret law limits government action, there is no way to hold the government accountable for violating unknown constraints. This practical immunity makes compliance optional.

Trump will soon inherit the secret laws generated under the Bush and Obama administrations. What actions will they permit? How will we know what limits they impose—and when he has exceeded them?

If Obama is committed to shoring up the rule of law, he should make more of that law public. Some legal opinions may contain factual details about intelligence operations—such as names or locations—that cannot be disclosed without risk to national security. In such cases, the solution is to redact those details, not to withhold the legal analysis in its entirety. 

In light of the limited time available and the resource-intensive nature of declassification, there are a few specific legal opinions that should receive priority, based on the sweeping powers they reportedly endorse. 

First, recent news reports revealed that the FISA Court in 2015 ordered Yahoo! to scan all of its customers’ incoming emails and turn over those containing a certain “digital signature.” If true, this would be an unprecedented expansion of the law that reportedly authorized the surveillance. But without access to the opinion, we don’t know what the court’s legal reasoning was or how broadly it sweeps. Would it allow Trump to order every company to scan the contents of all domestic email traffic?

Second, a 2010 report by the Justice Department’s inspector general discussed an OLC opinion on FBI intelligence activities. While the discussion is heavily redacted, the OLC opinion seemingly concluded that the FBI may bypass statutory constraints on collecting data about Americans’ electronic communications. The inspector general warned that the opinion “creates a significant gap in FBI accountability that should be examined closely by the FBI, the [Justice] Department, and Congress.” Could Trump exploit this gap to resume bulk collection of Americans’ phone records, notwithstanding the 2015 law that prohibits it?

Finally, an unknown number of Bush-era OLC opinions on detention and interrogation remain classified. With Trump having pledged to repopulate Guantánamo and resume waterboarding, we cannot tolerate any legal indeterminacy. There should be no secret OLC opinions on these subjects.

Making these legal authorities public would not prevent the Trump administration from creating its own secret law. A solution to that problem will require action by Congress. But disclosure could enable us to see when existing legal lines have been crossed. And if we conclude that current authorities give the incoming administration too much power, we can push Congress to set clear limits, which could make secret expansions more difficult.

Obama’s own administration created many of the secret legal authorities his successor will be exercising. It is now the president’s responsibility to honor the rule-of-law principles he has repeatedly espoused by releasing more of them.

Cross-posted at The American Prospect. 

© 2016 Brennan Center for Justice

Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program, which seeks to advance effective national security policies that respect constitutional values and the rule of law.