
The Government’s Addiction to ‘Secret Law’ - af16090
http://www.nytimes.com/2016/10/18/opinion/the-governments-addiction-to-secret-law.html
======
M_Grey
Two quotes from Eisenhower spring to mind.

 _" It is part of the general pattern of misguided policy that our country is
now geared to an arms economy which was bred in an artificially induced
psychosis of war hysteria and nurtured upon an incessant propaganda of fear.
While such an economy may produce a sense of seeming prosperity for the
moment, it rests on an illusionary [sic] foundation of complete unreliability
and renders among our political leaders almost a greater fear of peace than is
their fear of war."_ (D.W. Eisenhower)

 _" In the councils of government, we must guard against the acquisition of
unwarranted influence, whether sought or unsought, by the militaryindustrial
complex. The potential for the disastrous rise of misplaced power exists and
will persist."_ (D.W. Eisenhower)

He was absolutely right, and I'm not sure that there's a realistic way out of
the decades-deep hole we've been digging for ourselves. Especially when you
consider that we appear to switch our brains off in the wake of any
significant terror attack, it seems hopeless.

~~~
1024core
We need to blame the voters as much as we blame the politicians. People get so
scared that they demand a dictatorship, basically.

Look at the scare du jour, ISIS. I mean, come on! We have the worlds largest
military by a factor of 10, and yet people are peeing their pants at the sight
of a few gun-toting crazies 8,000 miles away!! We faced down USSR which had
the capability to annihilate us 100 times over, and yet we cringe at the sight
of ISIS. What's wrong with these people?

~~~
dmix
ISIS is hardly a problem when it comes to the military industrial complex. The
constant fear mongering over Russia recently is the real and serious driver
here. The military doesn't _want_ to fight ISIS because it's not predicated on
expensive jets, aircraft carriers, naval warfare, cyber, etc, etc.

It's not a mistake that any level of provocation by Russia is met with weeks
of saber rattling and outrage in the media.

Although ISIS is a good driver for expanding the intelligence community.
Hillary Clinton's primary military strategy that she promotes on her website
is expanding an already bloated intelligence community and broadening
intelligence collection. Both candidates are very much industrial complex
friendly. That's one of the few things that's certain in this election.

~~~
rfrank
if pure military industrial complex expansion was the goal, we'd already be
fighting in the south china sea. a huge amount of manufacturing would be
forced to move stateside again, and lockheed/nothrop/boeing/raytheon/etc. etc.
would make a lot of money.

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wyldfire
> When President Obama issued procedures and standards for using lethal force
> against suspected terrorists overseas, agency officials were bound to follow
> them.

It's a perpetual, boundless war fought on our behalf. It's too bad Congress
can't find a way to permit this activity in some limited fashion without just
ignoring it (congress please RTFM: Article I, Section 8, Clause 11). This sets
a horrible precedent for future presidents. We have ceded enormous discretion
to the executive here. It seems prudent to have a ton of oversight and
disclosure surrounding programs that allow for execution of individuals,
regardless of where they live.

Footnote: Rep. Lincoln (regarding conflict w/Mexico over disputed Texas): "The
provision of the Constitution giving the war-making power to Congress, was
dictated, as I understand it, by the following reasons. Kings had always been
involving and impoverishing their people in wars, pretending generally, if not
always, that the good of the people was the object. This our Convention
understood to be the most oppressive of all Kingly oppressions; and they
resolved to so frame the Constitution that no one man should hold the power of
bringing this oppression upon us. But your view destroys the whole matter, and
places our President where kings have always stood."

~~~
JumpCrisscross
> _We have ceded enormous discretion to the executive here_

This is best exemplified by our nuclear chain of command. The President has
unquestioned power to launch nukes. This applies irrespective of whether we
are launching first.

~~~
mikecb
Interestingly, it's a little bit more complex. The so called two-man rule does
exist for release of nuclear arms:
[https://en.wikipedia.org/wiki/National_Command_Authority](https://en.wikipedia.org/wiki/National_Command_Authority)

That is, the President's order is necessary, but not sufficient. I think
generally this sort of restriction to a single actor suggests an extraordinary
level of restraint as a country, rather than discretion. Other actions which
require Presidential level direction are drone strikes and cyber attacks.

~~~
JumpCrisscross
"If the Secretary of Defense does not concur, then the President may in his
sole discretion fire the Secretary. The Secretary of Defense has legal
authority to approve the order, but cannot veto it."

Two people (in one branch) to authorise, but still one'a decision needed.

------
DannyB2
Secret Laws

Secret Interpretations of Laws

Secret Courts

Secret Warrants

Secret Court Orders

Secret Arrests

Secret Trials

Secret Evidence (not made available to the defense)

Secret Convictions

Secret Prisons

Secret "enhanced interrogation" programs

Gee, it sounds like we've become everything we were fighting against in the
previous century.

But it keeps the money flowing.

Next after the military industrial complex is the for-profit prisons. Vacant
cells mean lower revenue and thus degrade profits, executive bonuses and
shareholder value. Our education system needs to be geared to produce just
enough inmates to occupy the for profit prisons, and enough productive workers
to pay for both the for profit prisons and military industrial complex.

~~~
marcoperaza
Secret trials and convictions? Don't exist in the US. Also, evidence cannot be
used in court but withheld from defense attorneys. You're just making this
stuff up. There are no secret prisons either. If you're talking about
battlefield prisons for captured combatants, that's obviously different than
the criminal justice system, and is par for the course in warfare.

You can definitely have secret warrants. How could you not? Imagine if the
cops had to publish the details of wiretaps. What use would they be?
Nevertheless, the secrecy must be justified and approved by a judge every few
months.

~~~
tracker1
Wow... have you really not been paying attention to the news for the last
decade and a half? Hell, the FISA court system and Civil Asset Forfeiture
alone go so far beyond the oppression this country stood up for. Troops on the
ground in sovereign nations without a declaration of war? As for evidence
being used in court while being withheld, see "parallel reconstruction"...
This is just the tip of the iceburg here. It's oppression and corruption of
everything this country was founded on.

~~~
marcoperaza
Congress has passed authorizations for all of those. The only difference
between that and a declaration of war is the word "war", which makes no
difference legally.

Edit: It's amazing that I'm being downvoted for a factual response to _"
Troops on the ground in sovereign nations without a declaration of war?"_

~~~
tracker1
How about a clear term of engagement, goal, resolution? I don't think we'd
respond too well for France sending troops regarding Mexican citizens inside
U.S. borders. We are not engaging state actors in foreign nations, and we are
not engaging foreign actors within our own borders.

As it stands we have far more military engagements on foreign soil than we've
seen since and maybe including WW2. We have a corrupt political system and
state that is in ever excessive violation of our own constitution, and a
people oppressed and divided.

We _really_ need another JFK or Reagan in terms of charisma and general
popular support, if not in somewhat similar political views. Another Truman or
Eisenhower would probably be better, but could never get into office today.

~~~
ChoHag
Shame you've got yourselves a Trump.

~~~
tracker1
I'm not voting for Trump or Hillary.

------
Spooky23
It's even worse than having secret law -- it's secret analysis and
interpretation of law.

In some cases, if a statute says: "All pens must be blue", and the
administration's attorneys study the statute and determine "When the congress
said that pens must be blue, we understand that they meant to say black", and
they then make that determination secret. The outcome isn't secret law, but
secret meta-law.

~~~
MereInterest
Unfortunately, this isn't new, either, and happens by the courts as well. I
still cannot comprehend how the draft does not violate the 13th Amendment.
Reading the court cases, the argument seems to be "We know that involuntary
servitude is forbidden, but surely they didn't mean this kind of involuntary
servitude."

------
titzer
Secret law is no law at all. Law is a contract between a people and the
government. Contracts where only one party has any knowledge are by definition
not contracts. Instead, this body of secret law operates completely outside of
public oversight, and generally grants the government powers that public,
bonafide law would ban or tightly restrict. Secret law is _always_ a violation
of the social contract, and we must reject it and punish actors in government
who justify it, no matter the specious ends they pursue.

~~~
DannyB2
The law is not a contract. It's a EULA. Shut up and click I AGREE already. :-)

------
donatj
I've said it many times, but we are not truly a nation of the people if the
people don't know everything the government is doing.

~~~
fullofit
That's an attractive sentiment but the reality is more of a spectrum. Should
every government official be required to wear a body cam and record every
conversation they have? Should we be able to track the position of every
soldier in real time? What are the implications of every negotiation being
public?

~~~
tehwalrus
> Should we be able to track the position of every soldier in real time?

No, but that's not what the article is about. There's an important difference
between _laws_ and orders/realtime tactical information.

~~~
fullofit
The article concludes that secrecy is necessary but requires a process with
more checks and balances.

------
throw2016
The problem is larger than secret laws. Once the culture of paying lip service
to fundamental principles is set within government it becomes systemic as has
already happened in the US government.

The danger then is a large number of individuals within government acquire a
sense of self righteous purpose convinced of an existential threat that allows
them to morally ride roughshod over the basic principles of the state, for
instance to run surveillance systems.

For them citizens become ignoramuses who have to be kept in the dark, so there
is no scope for debate. And who would not protest so much if only they knew
all this is just to keep them 'safe'. Of course its not. A shift from
accountability towards secrecy is always about the accumulation and abuse of
power.

Unless they are prosecuted and held accountable in courts where their world
view can be challenged in the open the culture will not change. It's important
for citizens to nip this in the bud before its too late.

~~~
TheSpiceIsLife
If, as you say, this has already happened in the US then it follows that it is
too late to nip it in the bud.

So where to from here?

------
Bartweiss
_" In this election year, as we honor our right to govern ourselves, those in
power and those seeking it should affirm that a regime of secret law has no
place in a democracy."_

This was a darkly amusing way to finish the article. Both major candidates
have openly endorsed expanding government surveillance and reducing legal
protections for privacy and access to law. There's no plausible election
outcome that would scale back secret law.

~~~
boyaka
The more people that vote third party, the more plausible it will become and
the bigger the message is that's sent that we aren't happy.

~~~
white-flame
Right. Everybody asks if they can vote "None of the above". That's exactly the
message that a 3rd party vote sends. People need to go out and have their
objection counted, instead of just bemoaning the major candidates and staying
home or voting for one of them.

While the two-party side effect of our voting system will likely ensure that a
Dem or Rep will get in again, boosting the third parties just to hit magic 5%,
10%, 15% tiers will actually be the best use of a vote to try to change the
political landscape going forward. There would be access to more funding,
media, debates, and DC facilities for the 3rd parties. The 3rd parties also
need to push for election process reform, to get rid of the 2-party effect.
Some localities are already testing the waters in more progressive voting
schemes.

This is all especially true if you're not in a swing state. If your state is
already blue or red, another blue or red vote is a 100% wasted vote. Remember,
you're not voting for the president; you're voting for who your _state_ is
going to vote for president. If that's already decided by a large mass of
card-carrying party line voters, or by extreme public sway, that determination
has already been made. Use your vote elsewhere.

We need creative destruction in the political process, and deconstructing or
at least challenging the incumbent parties is the only civilized option I see.
Too many people throw their hands up at Dem vs Rep, and think the only way to
change that is violent revolution.

------
mikecb
Perhaps the United States has secret law because it's one of a very small set
of jurisdictions (read: pretty much only) that subjects the most classified
actions to a comprehensive and deeply integrated legal framework. For some
interesting reading, check out Intelligence Oversight, a toolkit, by the
Geneva Center for the Democratic Control of Armed Forces[1]

[1] [http://www.dcaf.ch/Publications/Overseeing-Intelligence-
Serv...](http://www.dcaf.ch/Publications/Overseeing-Intelligence-Services-A-
Toolkit)

------
grzm
I'm glad to see discussions like this that are looking beyond the election
about how we can move forward to increase transparency, working to hopefully
regain some of the public's trust. An open question is whether we as a nation
can keep pressure on the officials to get changes made. Difficult to do in the
best of circumstances and even more so in the current state of polarization
and divisiveness.

~~~
tracker1
The bitter irony is that we have a seated president that promised such things,
but only stood to do the opposite. We simply can not trust the vast majority
of our political body to do what they say, promise and in turn we elect them
to do.

We are probably less than a couple decades away from a 1984-like dystopian
future, or a very large scale block of civil unrest and domestic warfare. The
increasing separation of classes combined with the duplicitous nature of
politics and corporatism in the U.S. (let alone through the world) can not be
strained much further without one of those results taking hold.

~~~
white-flame
We still have the revolution-via-vote of rejecting the 2 major parties and
casting in with the upstarts, even if they won't get in this time. It doesn't
need to come down to unrest and violence. Rep vs Dem is a false dichotomy; it
just has current momentum (which happens to be falling fast).

------
jwtadvice
Some of the things I remember from this past administration:

1\. Secret global and domestic surveillance.

2\. Secret application of war powers.

3\. Secret assassination programs.

4\. Secret courts with secret warrants.

5\. Secret torture programs.

6\. Secret prison systems and secret "extraordinary" rendition.

7\. Secret compulsion letters for secret military and intelligence efforts.

8\. Secret deportations with a public relations face saying the opposite.

9\. Secret sabotage programs.

10\. Secret intelligence involvement in the production of US media.

11\. Secret censorship of domestic protests.

12\. Secret trade deals with secret foreign policy objectives.

13\. Secret nuclear deals with historic US enemy states.

14\. Secret transfers of money overseas.

15\. Secret arms support overseas of groups in Syria.

16\. Secret meeting in the Congress (the most of any president in the history
of the country).

17\. Secret interpretations of law.

18\. Secret investigations of civil and human rights allegations.

------
fit2rule
The corruption of government begins with its secrets. A truly free people keep
no secrets.

~~~
intrasight
Well said. Although I only agree within the domestic context. Some countries
make all their citizens tax returns public - that's a good kind of openness.
However, when dealing with foreign countries there will often be a need for
secrecy.

~~~
ChoHag
In order to continue to deal with foreign countries as they have hitherto been
dealt, there will often be a need for secrecy.

------
white-flame
This part absolutely disgusts me:

 _Even when they have access, lawmakers often fail to push back against
interpretations that go too far. After all, they have little incentive to take
on the national security establishment when their constituents are not even
aware that a problem exists._

As a representative, you are there to uphold the constitution and deal with
all the issues that would otherwise swamp the general public. You are not
micromanaged by the people. Your general representation has been elected. We
do not elect you to sit on your butt and wait for "incentives". DO YOUR JOB.

------
lucker
'Secret law' is not law at all, and I consider it the duty of every American
to expose and, if necessary, disobey it. Any legal professional participating
in 'secret law' should be disbarred.

------
gaius
The word "privilege" quite literally means "private law".

------
rayiner
The article is ridiculous. Legal interpretations are only law when they have
been adopted by a court. A private legal interpretation is not a "secret law."
To the contrary, every organization of any substantial size has private
interpretations of laws, and those interpretations are protected from
disclosure by attorney-client privilege.

------
emodendroket
If this an option it's obvious why any administration would prefer to take it
but it's an abdication of duty for Congress and the courts to do nothing about
it.

------
MichaelMoser123
What is the point of a law if it is kept secret? Doesn't secrecy defeat the
purpose of the concept of having laws and of due process? How did they
establish the concept of secret laws and how are these laws passed if not in
secret?

~~~
MichaelMoser123
In socialist countries there were many unwritten regulations/instructions -
what is allowed/verboten in politics? The law would not state that explicitly
because the policy of the party could change suddenly (like with the Molotov -
Ribbentrop packt) and the law is not that easily adjusted. Therefore behavior
was regulated by taboos - don't say anything that is not stated by the state
media, better don't say anything because politics keep changing. I wonder if
secret laws are a move in the same direction.

------
puppetmaster3
JFK [http://tinyurl.com/zvg25wj](http://tinyurl.com/zvg25wj)

------
alanh
The government considers transparency a flaw and attempts to route around it.

