Secret Law

JONATHAN MANES*

The law cannot be a secret hidden from the public. This proposition strikes
most of us as uncontroversial—a basic premise of any legal order committed to
democratic accountability and the rule of law. Yet in this country secret law not
only exists, but has become an entrenched feature of contemporary national
security governance. From NSA surveillance to terrorist watch lists to targeted
killings, the most controversial national security programs of our time have all
been governed by secret rules, secret directives, and secret legal interpretations.
This Article sheds new light on this deeply unsettling state of affairs. It
pushes beyond a reflexive aversion to secret law to unpack the underlying
normative principles that both militate against secret law and motivate its
widespread use. Secret law poses grave threats to basic values of democratic
accountability, individual liberty, and separation of powers, but it also serves
pragmatic national security purposes. By clarifying these competing values, it is
possible to identify a number of distinct characteristics that make a given
example of secret law especially odious—or essentially benign. This Article thus
offers a systematic rubric for evaluating particular instances of secret law.
This Article also provides the first systematic review of the legal ecosystem
that governs secret law in the Executive Branch—what I call the “law of secret
law.” The picture that emerges is startling: existing law gives the Executive
Branch enormous discretion to keep law secret. Indeed, the courts have effec­
tively endorsed the practice of secret law, and Congress has been almost
entirely quiescent in its face.
This Article proposes a novel reform agenda to transform this permissive
legal ecosystem into one that more adequately protects transparency values. It
offers core principles for a new framework statute limiting the practice of secret
law. In addition, it argues that courts can and should prompt democratic
deliberation over secret law (and legislative reconsideration of the status quo)
by adopting a constitutional clear statement rule against secret law that is
grounded in the text and structure of the Constitution.

* Assistant Clinical Professor of Law, State University of New York, University at Buffalo School of
Law; Affiliated Fellow, Yale Law School Information Society Project. © 2018, Jonathan Manes. The
author is grateful for feedback on earlier versions of this Article from Jack Balkin, Kiel Brennan-
Marquez, Michael Froomkin, Heidi Kitrosser, Harold Koh, Paul Kahn, Margot Kaminski, Dakota
Rudesill, David Schulz, Andrew Selbst, and Chuck Sims, as well as other participants in the Yale
Freedom of Expression Scholars Conference and Yale Information Society Project workshop, including
Enrique Armijo, David Thaw, Christina Mulligan, Colin Agur, BJ Ard, Valerie Belair-Gagnon, Rebecca
Crootof, Camilla Hrdy, Lauren Henry, Kate Klonick, Gabriel Michael, Kerry Monroe, Pranesh Prakash,
Esteve Sanz, and Cilla Smith. Special thanks to Anne Parham, Caroline Boisvert, Aneesha Sehgal,
Grace Song, and their colleagues at the Georgetown Law Journal who expertly edited this Article and
shepherded it to publication.

803

804 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805

I. SECRET LAW DEFINED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810

II. SECRET LAW IN THE BALANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 813

A. THE TROUBLE WITH SECRET LAW ....................... 814

1. Secret Law as a Threat to Individual Liberty and to

Limits on Government Powers . . . . . . . . . . . . . . . . . . . 814

2. Thwarting Democratic Accountability and Participation . 817

3. Undermining the Separation of Powers . . . . . . . . . . . . . 821

B. THE REASONS FOR SECRET LAW ........................ 826

1. Keeping Secret Programs Secret . . . . . . . . . . . . . . . . . . 826

2. Secrecy to Prevent Circumvention or Increase

Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 829

3. Paternalistic Lawmaking . . . . . . . . . . . . . . . . . . . . . . . 830

4. Protecting Government Deliberations . . . . . . . . . . . . . . 832

III. EVALUATING SECRET LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 834

A. EXTERNAL EFFECTS ................................ 835

B. NOVELTY AND FORESEEABILITY ........................ 836

C. GRANULARITY ................................... 837

D. DURATION ...................................... 838

E. DEPTH ......................................... 839

IV. THE LAW OF SECRET LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 840

A. DUE PROCESS OBLIGATIONS TO DISCLOSE THE LAW ........... 842

B. SECRET PRESIDENTIAL LAWMAKING AND THE FEDERAL REGISTER

ACT .......................................... 845

C. THE FREEDOM OF INFORMATION ACT .................... 848

V. REFORMING THE LAW OF SECRET LAW . . . . . . . . . . . . . . . . . . . . . . 856

A. PRINCIPLES FOR REFORM OF SECRET LAW ................. 858

1. No Secrets About the Scope of Secret Law . . . . . . . . . . 858

2018] SECRET LAW 805

2. Minimizing the Tension Between Secrecy and

Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
3. Governing Secret Law According to Public Rules
Democratically Adopted and Judicially Enforced . . . . . . 862
B. FORCING PUBLIC DELIBERATION OVER SECRET LAW: A ROLE FOR
THE COURTS ..................................... 864
1. A Constitutional Clear Statement Rule Against Secret
Law as a Democracy-Forcing Mechanism . . . . . . . . . . . 865
2. Toward a Constitutional Clear Statement Rule Against
Secret Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869

INTRODUCTION
The law cannot be a secret hidden from the public. This proposition strikes
most of us as uncontroversial—a basic premise of any legal order committed to
democratic accountability and the rule of law. The idea that the very rules that
empower and constrain the government could be kept secret from the public—
immune from its scrutiny and democratic deliberation—is deeply troubling. Yet
in this country secret law not only exists, but has become an entrenched feature
of contemporary national security governance. Indeed, over the past fifteen
years the government has consistently, vigorously, and openly defended its
authority to adopt and maintain secret legal rules; the courts have often en­
dorsed this practice; and Congress has been almost entirely quiescent in its face.
Over and over in the post-9/11 era, the story of national security policymak­
ing has been the story of secret law. The most controversial programs initiated
in response to the contemporary threat of terrorism have been founded upon
secret legal rules, secret legal interpretations, secret legal directives, or some
combination of the three. Although the notion of secret law is startling, there is
no doubt that it has become a regular part of national security governance. A
brief recitation of recent programs establishes this alarming claim.
Immediately after the 9/11 attacks, the administration of President George W.
Bush enacted a policy of warrantless domestic surveillance, apparently flouting
criminal prohibitions on domestic spying by intelligence agencies.1 It did so by

1. See generally OFFICES OF INSPECTORS GEN. OF THE DEP’T OF DEF. ET AL., REP. NO. 2009-0013-AS,
UNCLASSIFIED REPORT ON THE PRESIDENT’S SURVEILLANCE PROGRAM (2009), https://oig.justice.gov/special/s
0907.pdf [https://perma.cc/YN3M-HYYQ] [hereinafter PSP REPORT] (discussing the creation and under­
lying policies of the President’s Surveillance Program); see also Morton H. Halperin & Jerry Berman, A
Legal Analysis of the NSA Warrantless Surveillance Program, CTR. FOR DEMOCRACY & TECH. 3–4 (Jan.
17, 2006), https://www.cdt.org/files/security/nsa/20060117halperinberman.pdf [https://perma.cc/TK7M­
2359].
806 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

adopting novel and aggressive legal interpretations in secret.2 Soon thereafter,

the government adopted the use of torture—euphemistically dubbed “enhanced
interrogation”—up to and including waterboarding.3 It authorized and governed
this program by again adopting novel and aggressive legal interpretations in
secret.4 In 2003, the government created a sizable new agency within the FBI to
administer a massive terrorist watch list.5 That watch list in turn spawned more
specific watch lists like the No-Fly List, which strips individuals of their ability
to fly in U.S. airspace.6 The basic rules governing the No-Fly List and other
lists—such as what it takes to be added or removed—were kept secret from the
public.7 After the original secret warrantless wiretapping program was exposed
by The New York Times,8 the government continued many of its dragnet
surveillance programs on the basis of secret law.9 For instance, the National
Security Agency’s (NSA) mass telephone call tracking program—the first pro­
gram revealed as a result of the Snowden disclosures10—was based upon novel,
aggressive, and secret statutory interpretations issued by the Foreign Intelli­
gence Surveillance Court (FISC) starting in 2006.11 A bulk email-tracking
program was likewise based upon secret FISC rulings.12

2. See PSP REPORT, supra note 1, at 5–14 (discussing the adoption of “new, highly classified
intelligence activities” authorized by President Bush, including authorized interceptions of international
communications).
3. See generally S. SELECT COMM. ON INTELLIGENCE, COMMITTEE STUDY OF THE CENTRAL INTELLIGENCE
AGENCY’S DETENTION AND INTERROGATION PROGRAM, S. REP. NO. 113-288 (2014), https://www.congress.gov/
113/crpt/srpt288/CRPT-113srpt288.pdf [https://perma.cc/K7JY-FQA2] (evaluating the CIA’s use of
“enhanced interrogation”); LARRY SIEMS, THE TORTURE REPORT: WHAT THE DOCUMENTS SAY ABOUT
AMERICA’S POST-9/11 TORTURE PROGRAM (2011) (providing a meticulous account of the Bush-era torture
program based on thousands of government documents).
4. See A Guide to the Memos on Torture, N.Y. TIMES (2005), http://www.nytimes.com/ref/international/
24MEMO-GUIDE.html [https://perma.cc/Q3AU-BCY8]; Andrew Cohen, The Torture Memos, 10 Years
Later, ATLANTIC (Feb. 6, 2012), https://www.theatlantic.com/national/archive/2012/02/the-torture-memos­
10-years-later/252439 [https://perma.cc/X9BW-H25G].
5. See generally OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, REVIEW OF THE TERRORIST
SCREENING CENTER (2005), https://oig.justice.gov/reports/FBI/a0527/final.pdf [https://perma.cc/U4Q6­
NJHC] [hereinafter DOJ-OIG 2005] (discussing the creation of the Terrorist Screening Center to
synthesize numerous terrorist watch lists).
6. See id. at 99–100.
7. See Latif v. Holder, 28 F. Supp. 3d 1134, 1141 & n.3 (D. Or. 2014).
8. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES
(Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.
html [https://nyti.ms/2k90zpQ].
9. See PSP REPORT, supra note 1, at 30–31.
10. See Laura K. Donohue, Bulk Metadata Collection: Statutory and Constitutional Considerations,
37 HARV. J.L. & PUB. POL’Y 757, 759–60 (2014); Glenn Greenwald, NSA Collecting Phone Records of
Millions of Verizon Customers Daily, GUARDIAN (June 6, 2013, 6:05 AM), https://www.theguardian.com/
world/2013/jun/06/nsa-phone-records-verizon-court-order [https://perma.cc/9SAX-W3LK].
11. See In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of
Tangible Things from [REDACTED], Order No. BR 0605 1, 2 (FISA Ct. May 24, 2006). See generally
Donohue, supra note 10 (analyzing, in depth, the telephone call tracking program).
12. See Press Release, James R. Clapper, Dir. of Nat’l Intelligence, DNI Clapper Declassifies
Additional Intelligence Community Documents Regarding Collection Under Section 501 of the Foreign
Intelligence Surveillance Act (Nov. 18, 2013), https://icontherecord.tumblr.com/post/67419963949/dni­
2018] SECRET LAW 807

The practice of secret law continued into the administration of President

Barack Obama. By the end of 2009, it was apparent that the government’s
counterterrorism efforts had begun to rely more heavily on targeted killings.
Drone strikes were frequently targeting individuals well beyond the borders of
the hot battlefields in Iraq and Afghanistan.13 The legal framework governing
these uses of lethal force was secret. Perhaps most startling of all, the govern­
ment claimed and deployed the legal authority to kill even U.S. citizens14—in
2011, the government targeted and killed a U.S. citizen away from any tradi­
tional battlefield as a counterterrorism measure.15 But even this awesome
assertion of power by the government was exercised according to legal rules
and standards that the public was not permitted to know.16
Secret law is real, and it is has become an important and unsettling tool of
national security governance. Of course, nobody disputes that the government
must be permitted to implement aspects of its national security policy in secret;
counterterrorism, military, and intelligence activities often require secrecy to be
effective. But the notion that the rules governing such programs may also be
secret is deeply troubling. An analogy from the context of ordinary criminal law
enforcement is instructive: We do not flinch at the idea of a particular search
warrant or surveillance order being issued under seal, that is, in secret. But the
notion that the law of government searches and surveillance—the Fourth Amend­
ment doctrines, statutes, and interpretations that govern this activity—could
also be secret is intolerable.17 Yet in the national security context, the rules that
govern are often secret.
How can this be? This Article appraises and illuminates this unsettling state
of affairs, focusing on the use of secret law in the Executive Branch.18 First, this

clapper-declassifies-additional-intelligence [https://perma.cc/RAK8-8MA2]; Press Release, Office of

Dir. of Nat’l Intelligence, Newly Declassified Documents Regarding the Now-Discontinued NSA Bulk
Electronic Communications Metadata Pursuant to Section 402 of the Foreign Intelligence Surveillance
Act (Aug. 11, 2014), https://www.dni.gov/index.php/newsroom/press-releases/press-releases-2014/item/
1099-newly-declassified-documents-regarding-the-now-discontinued-nsa-bulk-electronic-communications­
metadata-pursuant-to-section-402-of-the-foreign-intelligence-surveillance-act [https://perma.cc/QN93-T282].
13. See THE DRONE MEMOS: TARGETED KILLING, SECRECY, AND THE LAW (Jameel Jaffer ed., 2016)
(describing the Obama era targeted killing program and the context in which the secret legal framework
governing targeted killings was developed).
14. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 8, 11 (D.D.C. 2010).
15. See N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 104 (2d Cir. 2014); see Dominic
Rushe et al., Anwar al-Awlaki Death: US Keeps Role Under Wraps to Manage Yemen Fallout,
GUARDIAN (Sept. 30, 2011, 2:31 PM), https://www.theguardian.com/world/2011/sep/30/anwar-al-awlaki­
yemen [https://perma.cc/ZVL6-SVF2].
16. N.Y. Times Co., 756 F.3d at 103.
17. Cf. Kevin S. Bankston, Only the DOJ Knows: The Secret Law of Electronic Surveillance, 41
U.S.F. L. REV. 589, 605–06, 619–20, 624–25 (2007) (discussing ex parte applications for certain pen
register surveillance orders, cell phone tracking orders, and “internet pen registers”).
18. Other authors have recently undertaken to examine secret law and have focused on the growth of
secret law in Congress and the courts, as well as the Executive Branch. Dakota Rudesill authored an
excellent and nuanced examination of the practice and problems of secret law that includes, among
other novel contributions, the most authoritative treatment of Congress’s practice of enacting legislation
that is kept secret from the public. See Dakota S. Rudesill, Coming to Terms with Secret Law, 7 HARV.
808 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

Article unearths the basic principles and values that secret law offends, as well
as the purposes that secret law serves. Second, based on this discussion, this
Article describes a novel and systematic rubric for evaluating whether and to
what extent any given secret law is problematic. Third, this Article provides a
synoptic view of the legal ecosystem that governs secret law, or what I call the
“law of secret law.” Finally, it proposes a reform agenda to transform this legal
ecosystem, which currently allows secret law to flourish, into one that strictly
limits secret law to circumstances where it is justified according to stringent and
public standards.
This Article seeks to push beyond a reflexive aversion to secret law to unpack
the underlying normative principles that both militate against secret law and
motivate its widespread use in the national security context. By clarifying these
competing principles, it is possible to identify distinct characteristics of specific
secret laws that make them particularly odious—or particularly benign. Specifi­
cally, this Article argues that certain secret laws can be assessed along five axes,
each of which describes a key characteristic of a given secret law. These axes
are (1) the extent of external effects, (2) the novelty and unforeseeability, (3) the
level of granularity at which the law is disclosed, (4) the expected duration of
secrecy, and (5) the depth or extent of secrecy. This Article contends that secret
laws are more problematic to the extent that they lie toward the extremes of one
or more of these axes. This multifactor test for assessing secret laws illuminates
what is really at stake in disagreements about the legitimacy of secret law,
moving beyond both a blanket rejection of secret law and a complete deference
to national security secrecy. Instead, debates about the legitimacy of a given
instance of secret law can more usefully be understood as disagreements about
where a secret law should lie along one or more of these axes—for example,

NAT’L SEC. J. 241 (2015). In addition, the Brennan Center for Justice published a remarkable report on
the problem of secret law that, among many other contributions, includes the most comprehensive
compilation of secret Department of Justice (DOJ) legal opinions that constitute governing law for the
Executive Branch. See ELIZABETH GOITEIN, BRENNAN CTR. FOR JUSTICE, THE NEW ERA OF SECRET LAW
(2016). Jonathan Hafetz authored an incisive and thoughtful examination of secret law that focuses, in
particular, on how such laws often take the form of fluid and indeterminate standards that tend to
expand discretion. See Jonathan Hafetz, A Problem of Standards?: Another Perspective on Secret Law,
57 WM. & MARY L. REV. 2141 (2016). Sudha Setty critiqued the practice of secret law from a historical
and comparative perspective. See Sudha Setty, No More Secret Laws: How Transparency of Executive
Branch Legal Policy Doesn’t Let the Terrorists Win, 57 KAN. L. REV. 579 (2009). The problem of secret
law in the courts—which can arise when courts seal their judicial opinions in full or part—has also
received some scholarly attention. See, e.g., Bankston, supra note 17 (discussing sealed judicial
opinions that elaborate legal standards governing various forms of electronic surveillance); Orin S.
Kerr, A Rule of Lenity for National Security Surveillance Law, 100 VA. L. REV. 1513, 1525 (2014)
(observing that secret decisions of the Foreign Intelligence Surveillance Court have produced “a body
of secret law that seems removed from what a majority of the public would approve”); Michael A. Sall,
Note, Classified Opinions: Habeas at Guantánamo and the Creation of Secret Law, 101 GEO. L.J. 1147,
1159–61 (2013) (arguing that judicial opinions in Guantanamo Bay habeas proceedings can establish
secret legal rules because such opinions are often heavily redacted to excise classified information,
thereby obscuring the precise contours of the legal rules that have been developed and elaborated in
those cases).
2018] SECRET LAW 809

whether a secret law’s external effects on the public are direct and significant
enough that secrecy is intolerable, or whether the rules developed in secret
should be disclosed in more granular detail.19
This Article is the first to attempt a systematic description of the law of secret
law—that is, the ecosystem of legal rules that govern the practice of secret law
in the Executive Branch, including the Due Process Clause, the Federal Register
Act, and the Freedom of Information Act.20 The upshot of this survey is that
there are, in practice, few legal constraints on the creation of secret law. The law
of secret law essentially gives the Executive Branch discretion to determine
whether and when the rules governing national security programs can be
shielded from the public and, thus, ordinary democratic oversight.
This legal ecosystem produces an equilibrium in which secret law prolifer­
ates. Current legal arrangements vastly undervalue the principles that militate
against secret law. Moreover, they produce an equilibrium that is not only
suboptimal, but also unstable. National security leaks like the Snowden disclo­
sures bring secret law into the light in fitful, unpredictable, and episodic ways.
Indeed, the Snowden disclosures were so momentous and disruptive precisely
because they revealed a body of law that had, for years, secretly empowered the
intelligence community in unforeseeable ways.
The law of secret law must be reformed to reset this equilibrium. This Article
proposes that Congress impose stringent limits that would be binding on the
Executive Branch and enforceable by the courts. This Article offers a novel
roadmap to obtain such reforms, arguing that courts should initiate legislative
reconsideration of secret law by recognizing that secret laws raise grave constitu­
tional concerns and should not be permitted unless Congress has clearly autho­
rized them. Indeed, as this Article will show, constitutional text, doctrine, and
structure support the notion that the Constitution is hostile to secret law in the
Executive Branch.21
If courts were to recognize this kind of constitutional “clear statement rule”
against secret law, they would effectively put the question of secret law to
Congress—if not outright prohibit it themselves. In other words, the courts
would be prompting a public and democratic deliberation about the second­

19. Cf. Hafetz, supra note 18. Hafetz argues that the problem of secret law is often better regarded as
a problem of inadequately specified legal standards that leave too much room for discretion. Id. at
2150–52. On this account, the problem is not that the rules are not disclosed at a sufficiently granular
level, but that there are not sufficiently granular rules to disclose in the first place. Id.
20. Jameel Jaffer and Brett Max Kaufman recently offered a trenchant examination of the “working
law doctrine” under FOIA, which is one important aspect of the law of secret law. See Jameel Jaffer &
Brett Max Kaufman, A Resurgence of Secret Law, 126 YALE L.J. F. 242 (2016).
21. This argument builds upon existing literature exploring the constitutional limits on secrecy in the
Executive Branch. See, e.g., MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRECY, AND
ACCOUNTABILITY (Univ. Press of Kan., 3d ed., 2010) (1994); Heidi Kitrosser, Secrecy and Separated
Powers: Executive Privilege Revisited, 92 IOWA L. REV. 489, 514–15, 542–43 (2007); David E. Pozen,
Deep Secrecy, 62 STAN. L. REV. 257 (2010); Adam M. Samaha, Government Secrets, Constitutional
Law, and Platforms for Judicial Intervention, 53 UCLA L. REV. 909 (2006).
810 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

order question of when law can be kept secret and thus immune from public and
democratic oversight.
The Supreme Court has repeatedly issued this kind of “democracy-forcing”
decision in its post-9/11 national security cases22—similar intervention is neces­
sary here. As it stands, we have stumbled into a system that permits secret law
essentially at will in the national security context. The courts should, at a
minimum, require our democratic institutions to make an explicit, public deci­
sion about whether and when secret law is justified. In the absence of meaning­
ful reform, we invite further creeping expansion of secret law, and we risk a
Kafkaesque state of affairs in which the public cannot know the rules by which
the government is playing.
***
This Article proceeds in five parts. Part I defines key terms, explaining what I
mean by “secret law” and why we should regard these kinds of internal
Executive Branch rules as “law.” Part II explores the normative terrain of secret
law, identifying three fundamental objections to secret law, as well as the four
principal rationales offered in its defense. Part III offers a systematic rubric for
assessing whether a given secret law is justifiable. Part IV is a synoptic tour of
the legal landscape in which secret law has taken root—what I call the “law
of secret law.” Finally, Part V offers a reform agenda to address the problem of
secret law and begins to sketch constitutional arguments that can be mounted
against the practice of secret law in the Executive Branch.

I. SECRET LAW DEFINED

To examine the normative and legal ecosystem that governs secret law, it is
necessary to provide a firmer account of what exactly constitutes “secret law” as
I use the phrase. Why does it make sense to regard internal Executive Branch
texts as “laws,” rather than something else—perhaps secret “guidance” or secret
“advice”? What does it mean for a law to be “secret”?
Thus far, this Article has illustrated the concept of secret law through
examples, such as Department of Justice (DOJ) memos assessing the legality of
targeted killings or torture, legal directives elaborating surveillance rules, and
manuals setting forth the rules for placing individuals on terrorism watch lists.
What makes each of these an instance of “law”?
In my view, these and other internal administrative texts constitute “law” if
they articulate rules or principles of general applicability that are regarded by

22. See Josh Benson, The Guantánamo Game: A Public Choice Perspective on Judicial Review in
Wartime, 97 CAL. L. REV. 1219, 1264–73 (2009); Cass R. Sunstein, Minimalism at War, 2004 SUP. CT.
REV. 47, 53–54 (“Courts should require clear congressional authorization before the [E]xecutive
intrudes on interests that have a strong claim to constitutional protection.”); Jack M. Balkin, Hamdan as
a Democracy-Forcing Decision, BALKINIZATION (June 29, 2006), https://balkin.blogspot.com/2006/06/
hamdan-as-democracy-forcing-decision.html [https://perma.cc/L4CZ-GH2F].
2018] SECRET LAW 811

the relevant officials as binding on their conduct.23 This is an explicitly func­

tional and sociological approach to what counts as law. Whether a legal text
constitutes law will depend on whether, as a matter of social fact, it plays a
certain role—specifying general rules or principles of conduct—for the relevant
government officials.
This definition is purposely indifferent to the particular form in which the
rule or principle is embodied or whether the legal text in question is denomi­
nated as a “rule,” “directive,” “opinion,” “manual,” or otherwise. What matters
is the social function of the text. Thus, a “memorandum” issued by a senior
official to govern the conduct of subordinates is an example of law, as I use the
term, so long as it sets out rules or principles of general applicability, as
opposed to, say, delivering a specific order to carry out a particular action.
On this definition, Executive Branch legal opinions that are regarded as
authoritative and binding by government officials count as law. More specifi­
cally, formal opinions of the DOJ’s Office of Legal Counsel (OLC) are law
because such opinions are—as a matter of practice and sociological fact—
regarded as “binding within the [E]xecutive [B]ranch unless ‘overruled’ by the
Attorney General or the President.”24 Likewise, a manual setting forth the rules
by which government officials are to administer a program is law if the manual
is regarded as binding by the officials administering the program.
This understanding of what constitutes a law makes sense for the purposes of
this Article, which aims to investigate the secrecy of the rules according to
which the government actually operates in dealings that affect the public. In this
context, what matters is whether the legal texts in question actually function as
authoritative rules that empower or constrain the government.
But this definition of law is not simply convenient for this Article’s purposes;
it is also broadly consistent with modern philosophical conceptions of law. This
definition is particularly likely to resonate with legal positivists, who emphasize
that whether a particular norm constitutes law depends on facts about the world,
particularly sociological facts about what rules the relevant community will
recognize as valid and binding.25 That said, accepting my working definition of

23. For an example of a more formal definition of law, see 5 U.S.C. § 551(4) (2012), which defines a
“rule” for purposes of the Administrative Procedure Act.
24. Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1711 & nn.90–91 (2011)
(book review) (reviewing BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010))
(“OLC generally will not provide legal advice if there is doubt about whether it will be followed.”); see
also Jaffer & Kaufman, supra note 20.
25. See generally H.L.A. HART, THE CONCEPT OF LAW (3d ed., 2012) (discussing law as a social
construction); Scott J. Shapiro, What Is the Internal Point of View?, 75 FORDHAM L. REV. 1157, 1161–65
(2006) (describing H.L.A. Hart’s account of social rules in term of rules that groups regard as binding
from the internal point of view). Many positivist accounts of law also rely on a version of the “rule of
recognition”—in other words, the acceptance of second-order rules that identify which primary rules
are binding. In contrast with formalized rules that identify valid laws passed by Congress or elaborated
by courts, second-order rules that identify internal laws within the Executive Branch are less stylized
and uniform. There is nevertheless little doubt that general agreement exists about which internal rules
are binding. “Both inside and outside of administration, agency rules, practices, and precedents are
812 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

law does not necessarily require a commitment to legal positivism because it is

not inconsistent with (at least some) contemporary natural law theorists’ jurispru­
dential views.26
The use of the term law in this way may strike a dissonant note to some ears
because such internal rules usually do not directly govern the conduct of the
public. Instead, they are primarily directed to the conduct of government
officials and will typically only have second-order effects on the public.27 In
addition, the laws at issue here are developed within the Executive Branch, in
contrast with legal rules enacted by Congress or prescribed in judicial opinions.
Moreover, unlike more familiar species of administrative law—for example,
rules adopted through notice-and-comment, agency circulars, and “publication
rules”28—these internal laws often escape judicial review or any other require­
ments of the Administrative Procedure Act (APA) because they concern national
security matters.29
Using the term “law” in this context may be uncommon, but it is by no means
an innovation. The notion that internal agency rules, practices, and precedents
constitute an “internal law of administration” dates back to the first treatise on
American administrative law, penned by Bruce Wyman in 1903.30 Although
contemporary study of administrative law tends to focus on the “external law”
of statutes and court decisions that constrain agencies and subject agency law to
judicial oversight, internal rules and practices—even those not adopted through
formal or informal rulemaking—continue to play an essential role in administra­

taken both to have normative force and to be subject to normative critique concerning whether they
instantiate an appropriate vision of lawful administration.” Jerry L. Mashaw, Federal Administration
and Administrative Law in the Gilded Age, 119 YALE L.J. 1362, 1471 (2010); see Elizabeth Magill,
Foreword, Agency Self-Regulation, 77 GEO. WASH. L. REV. 859, 861 (2009).
26. Modern natural law theorists, such as Lon Fuller, are not primarily concerned with identifying
the social facts or practices that distinguish law from other norms; instead they argue that to qualify as
law, a system of rules must meet certain moral criteria. See generally LON L. FULLER, THE MORALITY OF
LAW (Yale Univ. rev. ed. 1969). Fuller argued that one of the eight principles essential to the “internal
morality of law” was that laws, properly so-called, must be made known to the public. See id. at 45,
49–51, 93. On this view, a system of laws in which the law is kept secret is essentially illegitimate—it
doesn’t satisfy the moral requirements of law. Id. at 49–51.
For purposes of this project, however, it would beg the question against the legitimacy of secret law
simply to posit that law must be public to be legitimate. The point of this Article is to examine the
special case where law is known only to government officials and not to the public. Indeed, Fuller
himself acknowledged that there may be circumstances in which “we must bow to grim necessity” and
keep law secret. Id. at 92. I thus employ a definition of law that does not include disclosure to the public
as a sine qua non.
27. See generally Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in
Criminal Law, 97 HARV. L. REV. 625 (1984) (distinguishing between “decision rules” directed to
officials and “conduct rules” directed to the public).
28. See 5 U.S.C. §§ 551, 553 (2012); Peter L. Strauss, Comment, The Rulemaking Continuum, 41
DUKE L.J. 1463, 1466–68 (2002).
29. See Robert Knowles, National Security Rulemaking, 41 FLA. ST. L. REV. 883, 883 (2014)
(explaining that a “national security exception from notice-and-comment” in the APA “insulate[s] most
national security rulemaking from public scrutiny and meaningful judicial review”).
30. See generally BRUCE WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE
RELATIONS OF PUBLIC OFFICERS (1903).
2018] SECRET LAW 813

tive governance. Jerry Mashaw has long stressed the crucial and underappreci­
ated role of such “internal law.”31 Gillian Metzger and Kevin Stack have
likewise revived and defended the idea of “internal administrative law” as a
distinctive form of law.32 Following these authors, I take the view that such
internal norms, which pervasively structure and govern bureaucracies, have a
philosophical and pragmatic claim to the status of law similar to the varieties of
“external” law that are more commonly studied in the literature.33
In addition to clarifying how I use the term “law,” it is worth explaining what
constitutes a “secret” law. I use the term “secret” to refer to laws that are not
officially made available to the general public. For instance, an Executive
Branch legal opinion that is shared with both Congress and the courts consti­
tutes a secret law unless it has been disclosed to the broader public.
Of course, there are degrees of secrecy: secrecy varies to the extent that the
law in question is disseminated within the Executive Branch, across branches of
government, or even with subsets of the public.34 Thus, for instance, one might
ask whether a classified FISC opinion still counts as a secret law if it has been
shared with security-cleared lawyers outside of the government who work for
the telecommunications companies directed to carry out the surveillance but
who are subject to a strict nondisclosure obligation. On my account, even this
species of law constitutes a secret law because the rules in question cannot be
shared with the general public.
Variations in the degree of secrecy certainly matter, as I discuss below, but
because the purpose of this Article is to explore whether and when the general
public can be kept in the dark about what the law is, I reserve the phrase “secret
law” to describe those cases where the public at large is shut out.

II. SECRET LAW IN THE BALANCE

This Part explores the normative terrain upon which disputes about secret law
are contested. It first sets out the principal arguments against secret law, which
fall into three clusters: threats to individual liberty, democratic deficits, and
separation of powers concerns.
It then discusses the principal rationales that have been advanced in favor of
secret law: maintaining the secrecy of sensitive government programs, prevent­
ing circumvention or otherwise increasing a program’s effectiveness, insulating

31. See, e.g., Mashaw, supra note 25, at 1412–15; Jerry L. Mashaw, Foreword, The American Model
of Federal Administrative Law: Remembering the First One Hundred Years, 78 GEO. WASH. L. REV. 975
(2010); Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the
Republican Era, 1801–1829, 116 YALE L.J. 1636 (2007).
32. See generally Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 MICH. L.
REV. 1239 (2017).
33. See Mashaw, supra note 25; Metzger & Stack, supra note 32, at 1256–63; see also Magill, supra
note 25, at 861.
34. See Pozen, supra note 21, at 262–75 (offering a subtle exploration of the degrees of secrecy in
government).
814 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

laws from public opposition, and protecting the deliberative capacity of

government.

A. THE TROUBLE WITH SECRET LAW

1. Secret Law as a Threat to Individual Liberty and to Limits on Government

Powers
Where the law is secret, individuals may not understand the legal conse­
quences of their actions or what restraints the government must respect in its
dealings with them. When the government operates according to secret rules, it
may appear to ordinary members of the public that officials are acting arbi­
trarily, lawlessly, or unpredictably. Members of the public will be left to guess at
the limits on the government’s authority, the rules it must follow, what official
consequences might flow from particular actions, and what kinds of activity
might arouse government scrutiny.
The result may be a significant chilling effect on individual liberties. As the
courts have recognized with respect to free speech rights, where a law that
relates to speech is unclear, “it operates to inhibit the exercise of [First Amend­
ment] freedoms” because “[u]ncertain meanings inevitably lead citizens to steer
far wider of the unlawful zone than if the boundaries of the forbidden areas
were clearly marked.”35 The same is true with respect to other liberties: Where
the government operates according to secret rules, individuals may be deterred
from engaging in all manner of lawful activities they fear might subject them to
government scrutiny, interference, or other negative consequences.36
Even where individuals are not actually deterred by the specter of secret law,
there is nevertheless significant harm to individual liberty. Governance accord­
ing to secret law will often be experienced by individuals as inscrutable,
arbitrary, and oppressive. This is because secret law, in essence, shifts the
ordinary balance of power between citizens and the government decisively in
favor of the latter. When the law is public, an individual can determine whether
a government action is unlawful and contest it. When a police officer makes a
traffic stop, for instance, the driver can know the rules of the game, what rights
she retains, and what legal options are available to her in responding to the
officer’s questions or directions. In other words, she can (in principle, at least)
ascertain the likely consequences of her actions. But when a government official
acts according to secret laws, the citizen is placed at a grave disadvantage:
Individuals are unable to dispute what the governing rules require, how they
should be applied, how they can be avoided, and what consequences can follow

35. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (internal quotations, footnotes, and
alterations omitted).
36. See Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect, 58
B.U. L. REV. 685, 689–92 (1978) (discussing the chilling effect with respect to rights beyond free
speech); Note, The Chilling Effect in Constitutional Law, 69 COLUM. L. REV. 808 (1969) (same).
2018] SECRET LAW 815

from them. When the law is secret, citizens are at the mercy of the government,
unable to know what the law requires or whether the government is violating it.
Contemporary government watchlisting programs provide a prime example
of these problems. The government maintains a database of more than one
million individuals in its Terrorist Identities Datamart Environment.37 Approxi­
mately 680,000 of these people have reportedly been watchlisted as “known or
suspected terrorists.”38 Thousands of these people are U.S. citizens or perma­
nent residents.39 Subsets of those watchlisted are subject to overt restrictions,
such as being placed on the No-Fly List, which forbids air travel. Other effects
of watchlisting are more opaque. The watch lists are routinely shared with
federal agencies, local police, foreign governments, and certain private entities,
which use them in ways that are unclear to the public.40 When a watchlisted
individual encounters any such entity, he or she is liable to face, at a minimum,
increased scrutiny and lengthier questioning,41 but often much more serious
consequences.42
The government sought for years to keep the rules governing this enormously
complex and consequential apparatus secret.43 The rules only became public in
July 2014, when they were leaked to journalists.44 Up until that point the only

37. Jeremy Scahill & Ryan Devereaux, Watch Commander: Barack Obama’s Secret Terrorist-
Tracking System, By the Numbers, INTERCEPT (Aug. 5, 2014, 12:45 PM), https://theintercept.com/2014/
08/05/watch-commander [https://perma.cc/G6WL-LM32].
38. Id. (internal quotations omitted).
39. Id. (reproducing government document indicating that approximately 20,800 U.S. citizens or
permanent residents are included in the government’s database, of which 5,000 have been watchlisted);
see Walter Pincus, 1,600 Are Suggested Daily for the FBI’s List, WASH. POST (Nov. 1, 2009),
http://www.washingtonpost.com/wp-dyn/content/article/2009/10/31/AR2009103102141.html [https://
perma.cc/XZ6P-L8MT] (“Fewer than 5 percent of the people on the list are U.S. citizens or legal
permanent residents.”).
40. Scahill & Devereaux, supra note 37.
41. The government’s leaked Watchlisting Guidance directs agencies that “encounter” an individual
on the watch list to use their existing authorities to collect all manner of information about the
individual for subsequent addition to the database. See NAT’L COUNTERTERRORISM CTR., WATCHLISTING
GUIDANCE 59–71 (2013), https://www.documentcloud.org/documents/1227228–2013-watchlist-guidance.
html [https://perma.cc/RR74-FHF9] [hereinafter WATCHLISTING GUIDANCE]; NAT’L CRIME INFO. CTR.,
NCIC 2000 OPERATING MANUAL: KNOWN OR APPROPRIATELY SUSPECTED TERRORIST (KST) FILE § 5.2 (2000)
(indicating law enforcement officers who encounter a watchlisted person should contact the FBI’s
Terrorist Screening Center and gather a variety of information, among other steps).
42. See, e.g., First Amended Complaint ¶ 8, Tanvir v. Lynch, 128 F. Supp. 3d 756 (S.D.N.Y. 2015)
(Document No. 15) (alleging the FBI used the threat of continued placement on the No-Fly List to
coerce Muslim Americans to become informants); Adam Goldman, Lawsuit Alleges FBI Is Using
No-Fly List to Force Muslims to Become Informants, WASH. POST (Apr. 22, 2014), https://www.
washingtonpost.com/world/national-security/lawsuit-alleges-fbi-is-using-no-fly-list-to-force-muslims­
to-become-informants/2014/04/22/1a62f566-ca27-11e3-a75e-463587891b57 [https://perma.cc/FN3A­
JB2B].
43. See WATCHLISTING GUIDANCE, supra note 41, at 1 (indicating that no part of the guidance manual
may be released because it constitutes “Sensitive Security Information” pursuant to transportation
security regulations).
44. See Jeremy Scahill & Ryan Devereaux, Blacklisted: The Secret Government Rulebook for
Labeling You a Terrorist, INTERCEPT (July 23, 2014, 1:45 PM), https://theintercept.com/2014/07/23/
blacklisted [https://perma.cc/JM6N-VBR9]; see also March 2013 Watchlisting Guidance, INTERCEPT
816 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

legal rule the government had disclosed was that a “reasonable suspicion”
standard of proof is applied when deciding whether to add individuals to watch
lists.45 Furthermore, the government had refused to say what a person must be
reasonably suspected of doing to be added, let alone revealed the detailed
criteria elaborating upon these requirements or the processes by which such
decisions are made.46 Nor had the government explained what standard must be
met for one’s name to be removed from the lists.47 As a result of many years of
litigation, the government did eventually describe the general criteria governing
placement on one particular watch list, the No-Fly List, but it still refuses to
disclose details about the No-Fly List rules and it has not disclosed anything
about the rules applicable to other watch lists.48
As a result of this secrecy, individuals have been kept in the dark as to why
they might be included on a watch list, what they must show to get themselves
removed, or even the likely consequences of being placed on a watch list.
Individuals who are improperly watchlisted are unable to point to violations of
the rules because the rules are secret. The government, in turn, enjoys enormous
unchecked discretion in how it interprets and applies its secret rules. Perhaps
unsurprisingly, the government has at times applied its watchlisting rules ex­
tremely broadly and sloppily.49 In one case, the government put a Stanford
University graduate student on the No-Fly List because an FBI agent misunder­
stood a routine form and mistakenly designated her for inclusion.50 Despite the
error, the government fought for years in court to keep her on the list—and to
prevent her from obtaining judicial review—taking two appeals to the Ninth

(July 23, 2014, 2:46 PM), https://theintercept.com/document/2014/07/23/march-2013-watchlisting­

guidance [https://perma.cc/C387-LN52] (publishing the rules).
45. See id.
46. See Latif v. Holder, 28 F. Supp. 3d 1134, 1141 (D. Or. 2014) (“The government also has its own
‘Watchlisting Guidance’ for internal law-enforcement and intelligence use, and the No-Fly List has its
own minimum substantive derogatory criteria. The government does not release these documents.”).
47. See id.
48. See Latif v. Lynch, No. 10-cv-750, 2016 WL 1239925, at *3 (D. Or. Mar. 28, 2016) (listing the
“substantive derogatory criteria” for inclusion in the No-Fly List but noting that other “sublists” in the
government’s watchlisting system have their own “substantive criteria”); Joint Combined Statement of
Agreed Facts Relevant to All Plaintiffs ¶¶ 5–6, Latif, No. 10-cv-750, ECF No. 173 (noting that “[t]he
Government has defined or further elucidated some of the terms used in the criteria for placement on
the No Fly List in the Watchlisting Guidance, which it has disseminated solely within the U.S.
Government watchlisting and screening communities”).
49. See generally OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, FOLLOW-UP AUDIT OF THE
TERRORIST SCREENING CENTER xvii–xxii (2007), https://oig.justice.gov/reports/FBI/a0741/final.pdf [https://
perma.cc/XJH2-LZQQ] (finding, among other things, that the FBI did not consistently update or
remove names from the watch list); OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, THE FEDERAL
BUREAU OF INVESTIGATION’S TERRORIST WATCHLIST NOMINATION PRACTICES (2009), https://oig.justice.gov/
reports/FBI/a0925/final.pdf [https://perma.cc/XM2G-55BJ] (auditing the terrorist watch list and find­
ing, among other things, that many names were not removed when required or failed to be added when
appropriate); DOJ-OIG 2005, supra note 5, at xi–xv (finding numerous problems with the accuracy and
completeness of the watch list database).
50. See Ibrahim v. U.S. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 911, 916 (N.D. Cal. 2014).
2018] SECRET LAW 817

Circuit.51 Eight years after the case was filed, following a trial at which the error
finally came to light, the district court could only describe her treatment by the
government as “Kafkaesque.”52
It seems inevitable that the specter of being watchlisted has deterred perfectly
lawful behavior, particularly in the American Muslim community, which is the
most affected by such efforts.53 Even if not deterred, individuals who are, or
who believe they might be, on the watch list live their lives under the forebod­
ing specter of the government’s power and its secret rulebook.
The same dynamic exists in other areas where secret law regulates govern­
ment activities. Secret rules governing surveillance, for instance, have led
individuals—particularly journalists and other professionals who owe duties of
confidentiality—to avoid using various means of communication because they
cannot be sure whether and how their communications will be protected.54
There is evidence of more subtle and widespread chilling effects on individual
behavior.55 Even if there were no empirical chilling effects, where the law is
secret, individuals live under the threat that they may at any time be caught up
in programs governed by rules that they are not permitted to learn.56

2. Thwarting Democratic Accountability and Participation

Secret law also poses a challenge to democratic principles: If the law in a
particular area is kept secret from the public, people cannot intelligently exer­
cise their democratic prerogatives with respect to those areas of law. Ordinarily,
people who support, oppose, or propose changes to a law have many democratic
tools at their disposal. Not only can they vote for candidates who share their
views, but they can also take more targeted actions to effect change, such as
petitioning, organizing, lobbying, fundraising, donating, and advertising. In­
deed, the Constitution specifically guarantees these rights through the petition,
speech, assembly, and press clauses of the First Amendment.57

51. See id. at 911–12.

52. Id. at 931.
53. See Scahill & Devereaux, supra note 37.
54. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 406–07 (2013); id. at 424–25 (Breyer, J.,
dissenting).
55. See, e.g., Jonathon W. Penney, Chilling Effects: Online Surveillance and Wikipedia Use, 31
BERKELEY TECH. L.J. 117 (2016) (finding a significant chilling effect following the Snowden disclosures
by measuring short- and long-term decline in traffic to Wikipedia articles on topics that raise privacy
concerns); Alex Marthews & Catherine Tucker, Government Surveillance and Internet Search Behavior
(Feb. 17, 2017) (unpublished manuscript) (finding a significant chilling effect, both domestically and
internationally, resulting from government surveillance based on data comparing the frequency of
searches for private or sensitive information on Google before and after the Snowden revelations),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2412564 [https://perma.cc/J2MH-GVYJ].
56. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1129 (9th Cir. 2006) (recounting facts relating to
individual denied boarding flight because of refusal to comply with requirements of secret security
directives).
57. U.S. CONST. amend. I.
818 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

Where the law is secret, however, the democratic apparatus of public account­
ability is short-circuited. If the substance of the law is secret, the public cannot
have any meaningful input or control over it.
The situation is particularly grave where not only the substance of the law is
secret, but where the public is also kept in the dark that a secret law even exists.
Nobody in 2002 would have rallied to oppose a law permitting waterboarding
because nobody then knew that the OLC had, in effect, written such a law
through its legal opinions authorizing the technique despite the criminal prohibi­
tion against torture.58 When the existence of the law is kept secret, the most the
public can hope for is that officials making the law pause to imagine what the
public would think of the law if it were disclosed, and that this private thought
experiment—perhaps combined with the possibility of future disclosure—has
an effect on officials’ decision making. In this sense, secret lawmakers are only
accountable to a hypothetical public.
Even where the public knows that a secret law exists, democratic oversight is
severely weakened. It is simply impossible to effectively manipulate the levers
of democratic oversight when one is forced to speculate about what the law
says.
Take, for instance, the example of surveillance pursuant to section 215 of the
USA PATRIOT Act.59 Under that law, the public knew that the FISC, on
application from the FBI, could issue orders for disclosure of “tangible things”
that were “relevant to an authorized investigation.”60 But the specifics of how
the FISC interpreted section 215 were kept secret. The provision was scheduled
to sunset in 2010 and again in 2011, unless Congress voted to reauthorize it.61
Civil society groups took the opportunity to lobby intensively for changes, but
they were forced to speculate about how the law was being interpreted.62 As it
turns out, their speculations were way off the mark. Most groups lobbying for
changes were concerned about the perceived risk that the FBI would use the law
to target individuals based on their First Amendment protected activities.63 This

58. See S. SELECT COMM. ON INTELLIGENCE, COMMITTEE STUDY OF THE CENTRAL INTELLIGENCE AGENCY’S
DETENTION AND INTERROGATION PROGRAM: FINDINGS AND CONCLUSIONS, S. REP. NO. 113-288, at xiii–xv
(2014), https://www.congress.gov/113/crpt/srpt288/CRPT-113srpt288.pdf [https://perma.cc/K7JY-FQ
A2]; Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, Counsel to
the President (Aug. 1, 2002), https://nsarchive2.gwu.edu//NSAEBB/NSAEBB127/02.08.01.pdf [https://
perma.cc/7PHX-K72F].
59. USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 215, 115 Stat. 272, 287–88 (2001) (codified
at 50 U.S.C. § 1861 (2012)).
60. 50 U.S.C. § 1861(b)(2)(A) (2012).
61. See CONG. RESEARCH SERV., 215-SUNSET, SUNSET OF SECTION 215 OF THE USA PATRIOT ACT OF
2001, 1 n.4 (2015), https://fas.org/sgp/crs/intel/215-sunset.pdf [https://perma.cc/R294-2XCG].
62. See, e.g., Protecting Constitutional Freedoms in the Face of Terrorism: Hearing Before the
Subcomm. on the Constitution, Federalism, and Prop. Rights of the S. Comm. on the Judiciary, 107th
Cong. 107–610 (2001) (statement of Jerry Berman, Executive Director, Center for Democracy and
Technology).
63. Reform the Patriot Act—Section 215, ACLU (Oct. 31, 2011), https://web.archive.org/web/
20111031065406/https://www.aclu.org/free-speech-national-security-technology-and-liberty/reform­
2018] SECRET LAW 819

concern led groups to focus on the use of section 215 to obtain library
records—a powerful example of records cloaked by First Amendment inter­
ests.64 Indeed, section 215 came to be known as the “library records” provision.65
Asked about these lobbying efforts after the Snowden disclosures revealed
the true scope of section 215 surveillance, Lee Tien, a civil liberties lawyer at
the Electronic Frontier Foundation, explained “[p]eople could see that those
kinds of records were very seriously connected to First Amendment activity and
the librarians were going to war on it.”66 Indeed, at that point the only public
evidence of abuse of section 215 involved FBI circumvention of the section’s
limited protection for First Amendment activity.67
It is hard to imagine a more misguided lobbying effort. As Tien reflected, “A
person might uncharitably think of us as lacking in imagination . . . .”68 But it is
difficult to blame anyone for failing to imagine that section 215 had been
interpreted to permit the indiscriminate mass collection of all domestic tele­
phone records by the NSA (and that a parallel provision of law had been
interpreted to permit mass collection of Internet records). Yet the law had been
used in that way at least as far back as 2006, four years before it first came up
for reauthorization.69

patriot-act-section-215 [https://perma.cc/AX2P-Z6TT] (explaining the PATRIOT Act prohibited investi­

gations conducted “solely” on the basis of First Amendment activity, which civil society groups
interpreted to mean that “[t]he FBI [could] investigate United States persons based in part on their
exercise of First Amendment rights”).
64. See, e.g., AM. CIVIL LIBERTIES UNION, RECLAIMING PATRIOTISM: A CALL TO RECONSIDER THE PATRIOT
ACT 18–20 (2009), https://www.aclu.org/sites/default/files/pdfs/safefree/patriot_report_20090310.pdf
[https://perma.cc/J6DQ-8XDE].
65. See Andrew C. McCarthy, Why Sections 214 and 215 Should Be Retained, PATRIOT DEBATES
(2005), https://apps.americanbar.org/natsecurity/patriotdebates/214-and-215-2#opening [https://perma.
cc/6LC6-FX5H]; see also Justin Elliott, Remember When the Patriot Act Debate Was All About Library
Records?, PROPUBLICA (June 17, 2013, 2:08 PM), http://www.propublica.org/article/remember-when-the­
patriot-act-debate-was-about-library-records [https://perma.cc/4FLM-4EC8].
66. Elliott, supra note 65 (internal quotation marks omitted).
67. A 2008 Inspector General report indicated that when the FISC twice denied section 215
applications citing First Amendment concerns, the FBI persisted in the investigation and issued
National Security Letters instead, which do not require any court approval or oversight. See OFFICE OF
THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, A REVIEW OF THE FBI’S USE OF SECTION 215 ORDERS FOR
BUSINESS RECORDS IN 2006 5, 65–74 (2008), http://www.usdoj.gov/oig/special/s0803a/final.pdf [https://
perma.cc/78FW-GHY6]; AM. CIVIL LIBERTIES UNION, supra note 64, at 18–19 (focusing on this and
related concerns with section 215).
68. Elliot, supra note 65 (internal quotation marks omitted).
69. That the NSA was collecting domestic calling records was reported by USA Today as far back as
2006, but at that point the program was based on the voluntary cooperation of telephone companies
turning over their call detail records, not any secret interpretation of law. See Leslie Cauley, NSA Has
Massive Database of Americans’ Phone Calls, USA TODAY (May 11, 2006, 10:38 AM), http://usatoday30.
usatoday.com/news/Washington/2006-05-10-nsa_x.htm [https://perma.cc/P4QA-9J4Y]. After these re­
ports came to light, the phone companies stopped providing the records voluntarily and insisted that the
government obtain a court order, prompting the government to obtain such a court order from the FISC
under an aggressive (and secret) interpretation of section 215. See Barton Gellman, U.S. Surveillance
Architecture Includes Collection of Revealing Internet, Phone Metadata, WASH. POST (June 15, 2013),
https://www.washingtonpost.com/investigations/us-surveillance-architecture-includes-collection-of­
revealing-internet-phone-metadata/2013/06/15/e9bf004a-d511-11e2-b05f-3ea3f0e7bb5a_story.html
820 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

This interpretation was not a truly “deep secret”70—everyone understood that

there was uncertainty about how section 215 would be applied by the FBI and
interpreted by the FISC.71 But even the shallow secrecy about the FISC’s
interpretation meant that years of lobbying efforts were almost completely
beside the point.
This kind of democratic oversight is important—not just to ensure that the
public can have its say, but also to improve the law itself. Where deliberation is
cloistered within certain parts of the Executive Branch and Congress or a small
number of judges, there is far less opportunity for expert criticism and moral
deliberation. By contrast, when the public is in the loop, it is possible for subject
matter experts, opinion leaders, and deep thinkers of various stripes to shape the
law to improve it, or at least to shed light on its likely benefits and drawbacks.72
Again, the section 215 example illustrates the point. Immediately after the
Snowden disclosures, technologists and computer scientists began to explain the
implications and pitfalls of the bulk phone collection program. They showed,
for example, that the rules governing the program meant that intelligence
analysts could probably review the calling histories of millions of Americans,
even though only a few thousand phone numbers had been tagged with reason­
able suspicion.73 Others explained and demonstrated how metadata analysis of
calling records could reveal a great variety of personal, highly confidential
information using simple analytic tools, even without combining it with other
sources of information likely available to the government.74

[https://perma.cc/3D93-GB2R]. It was not until the Snowden disclosures that the public learned section
215 had been interpreted to authorize bulk collection in this way. See id.
70. I follow the terminology used by David Pozen. See Pozen, supra note 21, at 267. As Pozen
explains, the “depth” of a secret depends on how many people know of the secret, whether those people
are spread across multiple institutions or branches of government, how much they know, and how
quickly they find out. See id.
71. See, e.g., AM. CIVIL LIBERTIES UNION, supra note 64, at 32.
72. Peter Shane makes a similar point, arguing that the lack of scrutiny that results from secrecy can
lead to poor decision making, particularly with respect to advice from Executive Branch lawyers. Peter
M. Shane, Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal
Analysis, 5 J. NAT’L SEC. L. & POL’Y 507, 508 (2012).
73. See, e.g., Sean Gallagher, You May Already Be a Winner in NSA’s “Three-Degrees” Surveillance
Sweepstakes!, ARS TECHNICA (July 18, 2013, 4:00 PM), http://arstechnica.com/information-technology/
2013/07/you-may-already-be-a-winner-in-nsas-three-degrees-surveillance-sweepstakes [https://perma.cc/
8QX5-EFRM].
74. See, e.g., Declaration of Professor Edward W. Felten ¶ 24, Am. Civil Liberties Union v. Clapper,
959 F. Supp. 2d 724 (S.D.N.Y. 2013) (ECF No. 27); Matt Blaze, Opinion, Phew, NSA Is Just Collecting
Metadata. (You Should Still Worry), WIRED (June 19, 2013, 9:30 AM), http://www.wired.com/2013/06/
phew-it-was-just-metadata-not-think-again [https://perma.cc/WC2E-F7QC]; Matthew Harwood, My Life
in Circles: Why Metadata Is Incredibly Intimate, ACLU (July 29, 2013, 3:19 PM), https://www.aclu.org/
blog/technology-and-liberty-national-security/my-life-circles-why-metadata-incredibly-intimate [https://
perma.cc/K7Z5-HA5V]; Mike Masnick, Anyone Brushing Off NSA Surveillance Because It’s ‘Just
Metadata’ Doesn’t Know What Metadata Is, TECHDIRT (July 8, 2013, 11:24 AM), https://www.techdirt.
com/articles/20130708/01453123733/anyone-brushing-off-nsa-surveillance-because-its-just-metadata­
doesnt-know-what-metadata-is.shtm [https://perma.cc/MS6L-DUXU]; Kurt Opsahl, Why Metadata
2018] SECRET LAW 821

Lawyers, for their part, quickly began raising Fourth Amendment concerns
that the FISC had apparently never considered. For instance, they pointed out
that in the Supreme Court’s 2012 decision in United States v. Jones,75 five
concurring Justices joined opinions suggesting that Fourth Amendment protec­
tions might be triggered by certain kinds of pervasive data collection about
individuals even if smaller scale collection of the same type of information
would raise no constitutional concerns.76
In response to this input from outside experts, the Obama Administration
announced significant reforms to the section 215 program,77 Congress passed
legislation to narrow the law and improve it,78 and one circuit court held that
the program—as it had been run pre-Snowden—was illegal.79 None of this
progress would have been possible had the secret interpretation of section 215
remained hidden from the public.
In short, secret law short-circuits ordinary democratic checks on lawmaking.
In practice, this means that public pressure that would otherwise lead to changes
and improvements in the law will be absent or misdirected. In extreme cases—
particularly where the public does not even know about the existence of the law
or where Congress is kept in the dark—secret lawmaking can amount to a kind
of oligarchy: lawmaking entrusted to an elite few who need not be concerned
about the public’s views regarding the governing rules they enact.80

3. Undermining the Separation of Powers

Secret law also interferes with the ability of the branches of government to
play their respective roles in a system of checked powers. Most notably, where
the law is secret, Congress’s ability to exercise its oversight responsibilities with
respect to the Executive Branch are greatly diminished, and the courts will often
be cut out of the equation completely because no litigant will be able to bring a

Matters, EFF DEEPLINKS BLOG (June 7, 2013), https://www.eff.org/deeplinks/2013/06/why-metadata­

matters [https://perma.cc/6VTY-ZTKF].
75. 565 U.S. 400 (2012).
76. See, e.g., Randy E. Barnett & Jim Harper, Why NSA’s Bulk Data Seizures Are Illegal and
Unconstitutional, FEDERALIST SOC’Y (Oct. 21, 2013), http://www.fed-soc.org/publications/detail/why-nsas­
bulk-data-seizures-are-illegal-and-unconstitutional [https://perma.cc/XRU7-AQZN] (explaining United
States v. Jones undermined the constitutional basis for the section 215 program in a number of ways);
Jonathan Hafetz, Bulk Data Collection and the Mosaic Theory: A More Balanced Approach to
Information, JUST SECURITY (Jan. 17, 2014, 9:00 AM), http://justsecurity.org/5758/guest-post-bulk-data­
collection-mosaic-theory [https://perma.cc/857J-JK8N].
77. See Press Release, Office of the Press Sec’y., Statement by the President on the Section 215 Bulk
Metadata Program (Mar. 27, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/03/27/
statement-president-section-215-bulk-metadata-program [https://perma.cc/9FY7-TXPP].
78. See USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015).
79. See Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 826 (2d Cir. 2015).
80. Legal philosopher Christopher Kutz makes a similar point regarding the illegitimacy of secret
law: “[S]ecret law deprives the governor of his legitimacy, undermining his right to rule. This is
because the claim to rule is a claim founded in law—not as a matter of constitutional pedigree, but as a
distinctive form of governance, with aspirations beyond mere thuggish control.” Christopher Kutz,
Secret Law and the Value of Publicity, 22 RATIO JURIS 197, 212 (2009).
822 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

justiciable case. Secrecy thus undermines external checks on the conduct of the
Executive Branch in the national security sphere, which, in turn, limits opportu­
nities for external reinforcement of internal constraints within the Executive
Branch.81 I explain and illustrate each problem in turn.
Both of the principal functions of Congress—to make laws and oversee their
implementation by the Executive—are impeded when the law is kept secret
from the public. The most obvious problems occur when the law is not only
kept from the public, but is only shared with a few select members of Congress.
Members of Congress are hamstrung when they are not permitted to freely
share information with all of their colleagues or the public: they cannot hold
public hearings, they cannot issue public subpoenas, and they cannot make
speeches because all of these activities would involve disseminating classified
information.82 Instead, members of Congress are relegated to working an inside
game, attempting to expand the circle of legislators privy to the secret law in
hopes of rallying efforts to engage in effective oversight or legislative efforts.83
But even when every member of Congress has access to a secret law,
Congress’s ability to discharge its oversight and legislative functions will be
greatly diminished for a number of reasons. Where the law is secret, it is
extraordinarily difficult to mount a legislative campaign to amend the law.84 It is
particularly difficult to muster legislative support, often in the face of executive
opposition, to fix a problem that the public does not even know about. There are
few rewards for a member of Congress to support such an initiative. Members
with strong principled objections to the secret law may propose amendments,
but in the absence of any public pressure to act others will prefer to abide the
status quo.
These difficulties are compounded by the strict restrictions members of
Congress face in reviewing, discussing, and sharing classified information. It
appears that congressional access to secret law is typically accomplished by an
opt-in system: members must go out of their way to review the secret materials

81. See Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separa­
tion of Powers, 59 EMORY L.J. 423, 437–47 (2009) (arguing that external checks and balances reinforce
internal constraints on executive power).
82. See generally Heidi Kitrosser, Congressional Oversight of National Security Activities: Improv­
ing Information Funnels, 29 CARDOZO L. REV. 1049 (2008).
83. As Professor Heidi Kitrosser has detailed, the rules governing the handling of classified
information in Congress do not give individual members of Congress the power to decide to disclose
information to colleagues. Instead, decisions about disseminating such information are entrusted to the
Executive, or else put to a vote of the relevant committees. See id. at 1080. Each house reserves the
right to make classified information public upon a majority vote of an entire house, but it does not
appear that this mechanism has been invoked even once. See id. at 1081–83; see also DENIS MC­
DONOUGH ET AL., CTR. FOR AM. PROGRESS, NO MERE OVERSIGHT: CONGRESSIONAL OVERSIGHT OF INTELLI­
GENCE IS BROKEN 27 (2006), https://cdn.americanprogress.org/wp-content/uploads/kf/ nomereoversight
.pdf [https://perma.cc/C6GX-SNR2].
84. See supra notes 59–71 and accompanying text (discussing the failed legislative campaign to
reform section 215 of the USA PATRIOT Act prior to the Snowden disclosures about how broadly that
provision had been interpreted).
2018] SECRET LAW 823

in a specified secure facility after undertaking the necessary oaths and other
formalities.85 Thus, many of one’s colleagues in Congress may not even be
“read in” to the secret law. Still worse, expert staff members and legal counsel
may not be cleared to see the information, severely hampering all but the most
diligent and expert members of Congress.86
The result of all these restrictions is that any congressional deliberation will
be stilted and cumbersome. And even if, despite these restrictions, there is a
movement within Congress to conduct oversight, it can happen only in closed
sessions, which are much less effective than open sessions precisely because
they lack the power to focus public attention on an issue and trigger outside
groups to engage with it.
The example of section 215 illustrates all of these difficulties. By the time the
PATRIOT Act was scheduled to sunset in 2011, the DOJ appeared to have made
available to members of Congress its secret interpretation of the law, which had
by then been endorsed by the FISC. But few members of Congress learned that
the law was in fact being interpreted to permit bulk collection of essentially all
domestic telephone records because this information was strictly controlled and
restricted.87 Indeed, one of the original sponsors of the PATRIOT Act, Represen­
tative Jim Sensenbrenner, has since related that he would not have voted to
reauthorize the law in 2011 had he known how it was being applied.88
Secrecy also stymied the small handful of legislators who began sounding the
alarm about section 215 early. One senator went so far as to propose amend­
ments that would have required disclosure of significant secret interpretations of
section 215.89 But those senators were unable to make a proper public case for
their amendment. Instead, to avoid divulging classified law, they were forced to
resort only to ambiguous hypotheticals about how the current law might permit
abuses.90 Unsurprisingly, relatively few members of Congress were moved to
vote in favor of the proposed amendments.91

85. See FREDERICK M. KAISER, CONG. RESEARCH SERV., RS20748, PROTECTION OF CLASSIFIED INFORMA­
TION BY CONGRESS: PRACTICES AND PROPOSALS 1–3 (2011) (describing restrictions on access to classified
information by members of Congress).
86. See Andrea Peterson, Obama Says NSA Has Plenty of Congressional Oversight. But One
Congressman Says It’s a Farce, WASH. POST (Oct. 9, 2013), http://www.washingtonpost.com/blogs/the­
switch/wp/2013/10/09/obama-says-nsa-has-plenty-of-congressional-oversight-but-one-congressman-says­
its-a-farce [https://perma.cc/64BE-8X2K] (“[Rep.] Amash also noted that the release he had to sign to
view classified documents prohibited him from discussing them with anyone—including other mem­
bers of Congress who all have clearance to discuss them.”).
87. See Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 820 (2d Cir. 2015).
88. See id.; Jim Sensenbrenner, Opinion, How Obama Has Abused the Patriot Act, L.A. TIMES (Aug.
19, 2013), http://articles.latimes.com/2013/aug/19/opinion/la-oe-sensenbrenner-data-patriot-act-obama­
20130819 [https://perma.cc/M4XQ-VRYB].
89. See 158 CONG. REC. S8,397–98 (daily ed. Dec. 27, 2012) (statement of Sen. Merkley).
90. See 158 CONG. REC. S8,398–407 (daily ed. Dec. 27, 2012); Declan McCullagh, Patriot Act
Renewed Despite Warnings of ‘Secret’ Law, CNET (May 28, 2011, 6:08 AM PDT), http://www.cnet.com/
news/patriot-act-renewed-despite-warnings-of-secret-law [https://perma.cc/KE33-N75K].
91. 158 CONG. REC. S8,427–28 (daily ed. Dec. 27, 2012) (recording votes on Senate Amendment
3435 regarding public disclosure of significant FISC opinions, which failed 37–54).
824 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

By contrast, once the secret interpretations of section 215 were made public
by Snowden—and members of Congress were made to feel the weight of public
opinion—similar amendments were passed into law with a bipartisan major­
ity.92 Until the secret law of section 215 became public, Congress was unable to
act as an effective check on the Executive Branch; once the law was public,
Congress was able to discharge its role.
Secret law also impedes the ability of the courts to function as an indepen­
dent check on the lawfulness of executive action. It does so for a simple reason:
if the law governing a program is secret, it will often be impossible to develop
cases to challenge the program. Even when lawyers do manage to bring cases to
court, secret law creates numerous obstacles to obtaining a decision on the
merits.
This was illustrated most starkly by Clapper v. Amnesty International USA, in
which a group of lawyers, journalists, and human rights researchers brought suit
to challenge foreign electronic surveillance under the FISA Amendments Act
because the law forced them to take costly measures to avoid the likelihood that
their confidential communications would be intercepted.93 The Supreme Court
dismissed the case for lack of standing because the plaintiffs did not know to a
certainty that their communications had been surveilled, and so, in the Court’s
view, could not prove an injury sufficient to establish their standing.94
Even in cases where plaintiffs can establish standing, the state secrets privi­
lege will often stand as an obstacle to adjudication.95 For instance, in response
to a lawsuit challenging the legality of the planned targeted killing of a citizen,
the government argued that the case could not be litigated because essential
facts about the program—including the detailed legal rationale96—were state
secrets. Although that case was ultimately dismissed on other grounds (the
political question doctrine and standing), the state secrets privilege stood as an
additional obstacle to adjudication had those two grounds been overcome.97

92. See USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015).
93. 568 U.S. 398, 401–02 (2013).
94. Id.
95. See generally Laura K. Donohue, The Shadow of State Secrets, 159 U. PENN. L. REV. 77 (2010)
(documenting how the state secrets privilege has evolved from an evidentiary privilege into a tool to
prevent cases from proceeding to the merits).
96. See Public Declaration and Assertion of Military and State Secrets Privilege by Robert M. Gates,
Secretary of Defense ¶ 5(B), Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), ECF No. 15-5
(asserting state secrets privilege over “criteria or procedures DoD may utilize in connection with such
military operations”); Declaration and Formal Claim of State Secrets Privilege and Statutory Privileges
by Leon E. Panetta, Director, Central Intelligence Agency ¶ 3, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1
(D.D.C. 2010), ECF No. 15-6.
97. See Al-Aulaqi, 727 F. Supp. at 53. Steve Vladeck and Andy Wright question whether greater
transparency would lead to better oversight given the myriad obstacles that have been placed in the way
of plaintiffs seeking to challenge national security programs. See Steve Vladeck & Andy Wright, Why
(Some) Secrecy is Good for Civil Liberties, JUST SECURITY (July 25, 2014, 8:18 AM), http://justsecurity.
org/13189/secrecy-civil-liberties [https://perma.cc/94JN-KHH8]. But secrecy stands as an additional
obstacle, and would often preclude litigation even if other threshold obstacles were eliminated.
2018] SECRET LAW 825

To be sure, that a law is secret does not always preclude a court’s involve­
ment, but it does mean that certain aspects of the adjudication will almost
always be conducted in secret, usually ex parte, with participation only by the
government. This has been the typical practice in the FISC.98 But ordinary
Article III courts have contemplated secret procedures, too.99 Adjudication in
such circumstances is fraught with familiar practical difficulties that are only
heightened in the national security context: courts operating ex parte cannot
have full adversarial argument or benefit from helpful public scrutiny and expert
participation.100
I do not mean to argue here that there can be no checks and balances where
the law is secret. At least where the law is not a “deep secret”—in other words,
the existence of a law is not itself secret, utterly unknown to coordinate
branches of government101—there may be opportunities for some interbranch
contestation outside of public view.102 But, as I have argued, such external
constraints will be severely compromised when public scrutiny is cut out of the
equation.
Moreover, a number of scholars have argued that checks and balances
internal to the Executive Branch can serve as constraints on the exercise of
executive power.103 There are difficult questions about whether internal adminis­

98. See FISA CT. R. P. 7(j), http://www.fisc.uscourts.gov/sites/default/files/FISC%20Rules%20of%

20Procedure.pdf [https://perma.cc/5P6D-GHKD]; Ben Cook, Note, The New FISA Court Amicus
Should Be Able To Ignore Its Congressionally Imposed Duty, 66 AM. U. L. REV. 539, 551–65 (2016)
(detailing the limited role of adversarial proceedings in the FISC and the evolution thereof).
99. See, e.g., Latif v. Holder, 28 F. Supp. 3d 1134, 1142 (D. Or. 2014) (“The government may
provide to the court ex parte and in camera information that is part of the administrative record and that
the government has determined is classified, Sensitive Security Information, law-enforcement investiga­
tive information, and/or information otherwise privileged or protected from disclosure by statute or
regulation.”).
100. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1060–61 (D.C. Cir. 1986) (“The openness of judicial
proceedings serves to preserve both the appearance and the reality of fairness in the adjudications of
United States courts.”).
101. The term “deep secrets” is drawn from David Pozen, who explores the nature and consequences
of secrets that are so deep that their existence is a tightly held secret known only to a small group of
officials. See Pozen, supra note 21, at 257, 260–65. Pozen’s notion of a deep secret in turn draws on the
work of Kim Lane Scheppele. See id. at 262; see also KIM LANE SCHEPPELE, LEGAL SECRETS: EQUALITY
AND EFFICIENCY IN THE COMMON LAW 21–22, 75–79, 84–85 (1988).
102. See infra notes 159–62 and accompanying text.
103. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Danger­
ous Branch from Within, 115 YALE L.J. 2314 (2006) (encouraging debate within the Executive Branch
as a means of internal checks and balances); M. Elizabeth Magill, Can Process Cure Substance? A
Response to Neal Katyal’s Internal Separation of Powers, 116 YALE L.J. POCKET PART 125 (2006),
http://yalelawjournal.org/forum/can-process-cure-substance-a-response-to-neal-katyala8217s-a8220inte
rnal-separation-of-powersa8221 [http://perma.cc/7BBD-8DDL] (discussing internal dissent within the
Executive Branch that led to substantive policy reform); Metzger, supra note 81 (discussing the efficacy
of internal and external checks and balances); Jon D. Michaels, An Enduring, Evolving Separation of
Powers, 115 COLUM. L. REV. 515 (2015) (explaining the impact of internal checks on the modern state
of separation of powers). See generally JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE
PRESIDENCY AFTER 9/11 (2012) (discussing the effects of internal checks, among other things, on
executive action in the aftermath of 9/11).
826 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

trative constraints can effectively replicate interbranch contestation, particularly

in the face of determined presidential action in the national security context.104
But even setting aside those general concerns, internal checks on executive
power are less likely to have bite when it comes to secret law. As Gillian
Metzger has argued, internal constraints within the administration depend on
external constraints for their vitality.105 Officials within the Executive Branch—
particularly those charged with developing rules and legal interpretations—will
act more carefully and deliberately when they know that the public and other
branches of government are likely to check their work.106 Where the Govern­
ment adopts rules not made public, external constraints will be weakened and
internal constraints will likewise suffer.

B. THE REASONS FOR SECRET LAW

Although secret law poses serious threats to principles of individual liberty,

democracy, accountability, and checks and balances, the government has never­
theless argued vigorously for the importance of keeping various laws secret. It
is necessary to take seriously the reasons that motivate the practice of secret
law. Four key rationales have been offered: maintaining the secrecy of a
government program, avoiding circumvention of a government program, protect­
ing a government program from being dismantled by misguided public opinion,
and protecting the ability of government to freely deliberate in private. I discuss
each in turn.

1. Keeping Secret Programs Secret

First and foremost, secret law has been justified by appeal to the need to keep
certain government activities secret. The concern is that disclosure of the rules
that regulate a government activity will tend to reveal details about the program
itself, so that if there is good reason to keep the latter secret then the former
must be kept secret, too. Courts have endorsed this rationale, holding that legal
rules governing a classified program may be properly withheld on the grounds
that the rules themselves would reveal information—such as intelligence
methods—protected by statute.107

104. See, e.g., Magill, supra note 103; Metzger, supra note 81, at 441–42.
105. See Metzger, supra note 81, at 442–47.
106. See Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive
Power, 54 UCLA L. REV. 1559, 1596–600 (2007) (“Perhaps most essential to avoiding a culture in
which OLC becomes merely an advocate of the administration’s policy preferences is transparency in
the specific legal advice that informs executive action, as well as in the general governing processes and
standards.”); Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103
MICH. L. REV. 676, 703, 749–51 (2005) (“The more the public understands what is at stake in executive
constitutionalism, the more pressure it can bring to bear on the executive to do it fully and well.”).
107. See, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 71, 73–74
(D.D.C. 2008) (explaining government may withhold legal opinions regarding Presidential Surveillance
Program, even though program was no longer in operation, because to do otherwise would reveal
classified information about methods of intelligence gathering); see also infra notes 240–43 and
2018] SECRET LAW 827

This argument may have significant force where it applies, but on close
inspection it applies much more narrowly than it might appear. This is for three
reasons. First, the fact that a secret law relates to a secret program does not
imply that disclosure of the secret rules would disclose the sensitive parts of the
program. For instance, in the foreign surveillance context pre-Snowden, the
government consistently refused to disclose the rules that governed how it must
treat the communications of U.S. persons collected in the course of targeting
foreigners.108 But keeping such rules—known as “minimization” rules—secret
did not serve to protect the secrecy of the surveillance capabilities or activities
of the government, but mostly to obscure the protections afforded to U.S.
persons caught up in such collection activities.109 It was therefore arguably
unnecessary to keep the minimization rules secret to protect the sensitive
aspects of the program.110 Prompted by the Snowden disclosures, the govern­
ment has now released the rules with certain redactions.
Second, laws relating to a secret program typically reveal sensitive informa­
tion about the program only if the laws are highly specific and granular. More
general statements of law can often be disclosed without revealing secret
operational details.111 The example of foreign surveillance again offers a useful
illustration. Merely disclosing the government’s interpretation of the surveil­
lance authorities need not reveal any operational details about the capacities of
the agency to intercept or analyze information or about who is targeted, how
they are targeted, or how often. Disclosure of laws at this intermediate level of
granularity need only reveal the permissible scope of collection. It is only when
one steps down a level of granularity—to, say, determinations about the lawful­
ness of targeting a specific group of individuals or rules governing how to
deploy or install particular collection tools—that disclosing government rules

accompanying text (collecting cases where the courts have permitted law to be withheld in response to
FOIA requests).
108. These minimization rules were first made public by The Guardian as a result of the Snowden
disclosures. See Glenn Greenwald & James Ball, The Top Secret Rules That Allow NSA to Use U.S.
Data Without a Warrant, GUARDIAN (June 20, 2013, 6:59 PM), https://www.theguardian.com/world/
2013/jun/20/fisa-court-nsa-without-warrant [https://perma.cc/T548-PF9W]. The government subsequently de­
classified and released the minimization rules. See Press Release, James R. Clapper, supra note 12.
109. The government previously withheld the minimization rules as classified on the grounds that
their disclosure would reveal intelligence sources, methods, and capabilities that are properly secret.
See Am. Civil Liberties Union v. Office of Dir. of Nat’l Intelligence, No. 10-cv-4419, 2012 WL
1117114, at *1 (S.D.N.Y. Mar. 30, 2012) (upholding agency determination to withhold records under
Exemption 1). Although these minimization rules relate to intelligence collection, they do not reveal
anything about those intelligence activities per se—for example, who is being targeted, what kinds of
communications the government is able to access, how the government collects the information, or how
much information is collected. Instead, the minimization rules disclose only what the government may
do with U.S. persons’ information after it has been acquired.
110. One might make the argument that disclosing the limits on how the government may use
information it has collected about U.S. persons could permit a nefarious actor to game those rules to its
advantage. This concern—that disclosure of the rules could permit circumvention of government
efforts—is discussed in the next section. See infra Section II.B.2.
111. See infra Section III.C (discussing varying granularity of secret laws).
828 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

reveals operational details. These more granular directives threaten to disclose

operational details that might legitimately require secrecy. By contrast, the less
granular law merely describes the legal limits within which the intelligence
agencies operate and discloses far less sensitive information about the govern­
ment’s activities.112
Finally, the argument that law must be secret to keep government activities
secret only works if the activities in question are, in fact, secret. If it is public
knowledge that the government engages in a given practice, withholding the
law governing that practice does not serve the stated purpose. The government’s
previously secret rules regarding targeted killing offer an illustration. The
government argued for years that its authoritative legal opinions on the issue
could not be disclosed because they were properly classified.113 All the while,
that the United States engaged in targeted killings was a secret to nobody.
Indeed, government officials were willing to discuss the program and particular
killings both on and off the record.114 In these circumstances, keeping the
detailed legal rationale secret did not serve any interest in keeping the underly­
ing activity secret.115 Instead, the government’s insistence on secrecy appeared
to be motivated by a desire to preserve its ability to resist further disclosure in
court—or, more charitably, to preserve the fiction that the United States was not
behind the targeted killings because official acknowledgment would put foreign
governments that acquiesced in the strikes in an awkward position. But these
rationales neither required nor justified keeping the law itself a secret.116

112. In the wake of the Snowden disclosures, the government has responded by disclosing previ­
ously secret law that precisely straddles these levels of granularity. See, e.g., Memorandum Opinion,
No. [REDACTED], at 29–30 (FISA Ct. Oct. 3, 2011) (Bates, J.) (disclosing details about the legal
scope of permissible surveillance while redacting information about who is targeted, among other
operational details); Press Release, Shawn Turner, Dir. of Pub. Affairs, Office of the Dir. of Nat’l
Intelligence, DNI Declassifies Intelligence Community Documents Regarding Collection Under Sec­
tion 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013), http://icontherecord.tumblr.
com/post/58944252298/dni-declassifies-intelligence-community-documents [https://perma.cc/7EN7­
72HY] (officially disclosing the opinion above).
113. See Am. Civil Liberties Union v. Central Intelligence Agency, 109 F. Supp. 3d 220, 225
(D.D.C. 2015), aff’d sub nom. Am. Civil Liberties Union v. U.S. Dep’t of Justice, 640 F. App’x 9,
11–12 (D.C. Cir. 2016) (per curiam) (permitting the government to continue to withhold certain legal
memoranda regarding drone strikes nearly six years after litigation seeking disclosure commenced).
114. See Cora Currier, How the Gov’t Talks About a Drone Program It Won’t Acknowledge Exists,
PROPUBLICA (Sept. 13, 2012, 12:14 PM), https://www.propublica.org/article/how-the-govt-talks-about-a­
drone-program-it-wont-acknowledge [https://perma.cc/BQC7-5SZ2]; Lena Groeger & Cora Currier,
Stacking Up the Administration’s Drone Claims, PROPUBLICA (Sept. 13, 2012, 1:15 PM), http://projects.
propublica.org/graphics/cia-drones-strikes [https://perma.cc/TYE4-V9DA] (collecting hundreds of pub­
lic statements by government officials regarding drone strikes).
115. Cf. N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 113–15 (2d Cir. 2014) (holding the
cumulative effect of official government statements regarding targeted killings waived claims to
secrecy over a particular OLC memo).
116. See Jack Goldsmith, Release the al-Aulaqi OLC Opinion, or Its Reasoning, LAWFARE (Oct. 3,
2011, 7:45 AM), http://www.lawfareblog.com/2011/10/release-the-al-aulaqi-olc-opinion-or-its-reasoning
[https://perma.cc/C3RX-UXQ4].
2018] SECRET LAW 829

For these three reasons, the notion that law must be kept secret to protect
secret operations can be overblown. There may still be circumstances where the
argument is sound; these constitute the hard cases, and I discuss how to deal
with them in the next few Parts.

2. Secrecy to Prevent Circumvention or Increase Effectiveness

Closely related to the first rationale for secret law—keeping programs
secret—is the notion that secret law is justified to avoid circumvention by bad
actors117 or because disclosure of the secret rules would make the government
program less effective.118 Paradigm examples of such laws include internal
protocols used by prosecutors in deciding whether to bring charges and internal
guidance about how the IRS decides who to audit. In both instances, the
concern is that a person who knows the rules by which the government plays
could use that knowledge to evade investigation or prosecution to the detriment
of the public’s interest in enforcing the law. Similar concerns motivate the
secrecy of rules governing the conduct of many national security programs,
including surveillance119 and other national security investigatory techniques,120
watchlisting,121 and targeted killing.122 Where the government operates accord­
ing to detailed rules that could conceivably be avoided by a bad actor to the
detriment of the government’s objective, there may be an interest in keeping the
rules secret.
The concern may be real, but the argument that it can justify secret law
proves too much. In any given area of governmental activity, disclosing the
applicable rules might create some opportunity for circumvention or at least
impede the effectiveness of the government’s efforts. But this alone cannot
justify keeping the law secret. For instance, disclosing a police department’s use
of force policy could conceivably lead bad actors to take measures to evade
authorities without having force used against them. Yet nearly every law

117. See Brian H. Bix, Secrecy and the Nature of Law 5–6 (Oct. 21, 2013) (unpublished manu­
script), https://www.law.upenn.edu/live/files/2418-bixsecrecy-and-the-nature-of-law-full [https://perma.
cc/9NZL-EMTF].
118. See, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 511 F. Supp. 2d 56, 69 (D.D.C. 2007)
(quoting declaration of then-OLC director Steven Bradbury) (crediting government’s contention that
disclosing legal opinions regarding the terms of the warrantless wiretapping program authorized by
President Bush “would compromise the effectiveness of the Program to the detriment of national
security” (internal quotations and citation omitted)).
119. See id.
120. See Memorandum of Law in Opposition to Plaintiff’s Motion to Lift the Nondisclosure
Requirement as to the Attachment to the National Security Letter at 5–6, Doe v. Holder, 703 F. Supp. 2d
313 (S.D.N.Y. 2010) (arguing that permitting disclosure of the types of information the FBI can seek
pursuant to a national security letter would impede effectiveness of national security investigations).
121. Cf. Latif v. Holder, 28 F. Supp. 3d 1134, 1154 (D. Or. 2014).
122. See Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support
of Defendants’ Motion to Dismiss at 56, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (No.
10-cv-1469).
830 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

enforcement organization in the country discloses such policies.123 To take

another example, disclosing that customs officers at the border are authorized to
copy the contents of hard drives at will may lead bad actors to avoid carrying
laptops across the border. But the government cannot seek to avoid such
circumvention by keeping this legal authority secret.124
Whether and when the anti-circumvention rationale can justify secrecy regard­
ing the scope of the government’s authority is a question I hope to explore more
fully in further work. But at a minimum, the anti-circumvention rationale will
only have bite if the government activity in question is particularly liable to
circumvention and if the harms of circumvention go beyond merely making the
government’s investigatory or other functions incrementally more difficult and
instead somehow undermine its ability to carry out a legitimate function at all. It
must also be the case that knowing the secret laws in question would, in fact,
facilitate circumvention. This will more likely be the case where the secret law
in question is disclosed in granular detail.
With respect to use of force policies and border searches, none of these
criteria weigh in favor of secrecy. The calculus may be different for other
programs. But this determination is essentially case-by-case, and the strength of
the anti-circumvention rationale will vary accordingly.
In short, arguments that arise from the mere possibility of circumvention
alone say little about the nature of the harms that may result from disclosure.
And even where there are legitimate concerns regarding circumvention, it
remains necessary to weigh the benefits of preventing circumvention against the
significant costs of keeping the government’s internal decision rules secret.125

3. Paternalistic Lawmaking
Philosopher Duncan MacIntosh has argued that law may be kept secret not
just to prevent bad actors from subverting it, but also to prevent a well-
intentioned but misguided public from “destroying” laws that are, in fact, in the
public’s interest, even if unpopular.126 This is a concededly paternalistic argu­
ment, resting on the presumption that elite insiders understand better than the
public itself what is in the public’s interest. The argument is so discordant with

123. See Use of Force Policy Database, POLICE USE OF FORCE PROJECT, http://useofforceproject.org/
database [https://perma.cc/9X5C-FFM7] (compiling use of force policies for the 100 largest U.S. city
policy departments).
124. Indeed, several courts have adjudicated whether border searches are legal and, in the process,
they have established public legal rules governing such searches. See, e.g., United States v. Arnold, 533
F.3d 1003, 1008–10 (9th Cir. 2008) (setting out Fourth Amendment standards that generally permit
suspicionless searches of a laptop at the border, with two narrow exceptions); United States v. Ickes, 393 F.3d
501, 505–06 (4th Cir. 2005) (holding that border searches can be conducted without suspicion).
125. See Dan-Cohen, supra note 27, at 665–67, 673–74 (explaining that the legitimacy of transmit­
ting internal government rules hidden from public view requires “evaluating competing substantive
moral considerations”).
126. See Duncan MacIntosh, Logically Private Laws 2 (Oct. 25, 2013) (unpublished manuscript),
https://www.law.upenn.edu/live/files/2453-macintoshlogically-private-laws-full [https://perma.cc/H6J8­
5DDR].
2018] SECRET LAW 831

common democratic assumptions that it has rarely been publicly advanced by

the government,127 but it nevertheless may underlie efforts to keep the law
secret. Particularly in areas like national security, where the government has
special access to information about the nature of the problems, a unique
responsibility to address them, and a special expertise and capacity to deal with
them, there may be a great temptation—perhaps even a sense of obligation—for
government officials to pursue their vision of the public interest even if they
understand that it would meet a tempest of political opposition if it became
public. But the dangers of such a course are obvious. Who gets to decide
whether, in a particular case, the paternalistic judgments of insiders can override
the likely will of the people? And what are the limits on such undemocratic
exercises of authority?
Some have defended a vision of the Executive Branch in which officials
simply exercise power as they deem necessary in times of emergency, uncon­
strained by rules or laws.128 This “Schmittian” view of administrative gover­
nance is one of essentially unfettered executive discretion.129 But on this
vision—whatever its merits—the problem is not that the law governing the
Executive is being kept secret; it is that there is no law at all. The kind of
paternalism demanded by a Schmittian Executive is paternalism not about what
rules should guide government, but about what a government unconstrained by
rules should do.
The problem of secret law, by contrast, only arises where the government has
chosen to bind itself to rules or is forced to do so by coordinate branches of
government or other forces. And, as it stands, the contemporary national
security state is not devoid of rules at all. The examples of surveillance, targeted
killings, and watchlisting make the point: Each program is regulated by detailed
internal guidance, legal opinions, and directives. Given that these laws exist, the
question is whether officials may keep them secret on the basis that those
officials would prefer to shield them from encountering a public they expect
would be hostile.

127. A version of the argument has sometimes been invoked to justify keeping certain judicial
decisions secret. The idea is that a redacted (or summarized) judicial decision adjudicating mostly
classified subject matter is more likely to confuse the public than illuminate it. See, e.g., In re Orders of
this Court Interpreting Section 215 of the PATRIOT Act, No. Misc. 13–02, 2014 WL 5442058, at *5
(FISA Ct. Aug. 7, 2014) (considering this argument but finding it inapplicable); In re Motion for
Release of Court Records, 526 F. Supp. 2d 484, 495 (FISA Ct. 2007) (“The benefits from a partial
release of declassified portions of the requested materials would be diminished, insofar as release with
redactions may confuse or obscure, rather than illuminate, the decisions in question.”).
128. See generally Adrian Vermeule, Our Schmittian Administrative Law, 122 HARV. L. REV. 1095
(2009) (arguing that contemporary administrative law contains various legal doctrines that create
domains in which the Executive Branch is free from legal constraint).
129. Compare id. at 1108 (calling the Executive Branch’s power in times of crises “Schmittian” and
suggesting the Executive will always find loopholes to act without constraint), with Evan J. Criddle,
Mending Holes in the Rule of (Administrative) Law, 104 NW. U. L. REV. 1271 (2010) (explaining that
loopholes giving the Executive Branch so much discretion could be closed without compromising an
agency’s ability to respond in an emergency).
832 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

If evading public scrutiny for the sake of evading negative public scrutiny is
an acceptable justification for keeping laws secret, we have travelled a signifi­
cant way down the road away from the consent of the governed and meaningful
democratic control of government. In any case, the premise of the argument—
that the public would precipitously and irrationally strip the government of
important powers—appears to be severely overblown. If anything, the lesson of
the 9/11 era is that when controversial secret programs eventually become
public, they will often be ratified and entrenched—perhaps with minor
modifications—rather than eliminated.130

4. Protecting Government Deliberations

Finally, the government has frequently argued that disclosure of some inter­
nal laws, particularly legal opinions, would impair the deliberative process of
the government. Opening up such texts to public scrutiny could “chill the ability
of the [E]xecutive [B]ranch to obtain legal advice,”131 impede candor and
internal debate, and ultimately threaten the quality of government decisions.132
Questions about whether internal law should be protected by deliberative
process have been explored most thoroughly with respect to the opinions of the
OLC.133 Such opinions are binding on the Executive Branch unless overruled

130. Examples abound. Military Commissions established unilaterally by the President, struck down
as unconstitutional in Hamdan v. Rumsfeld, 548 U.S. 557, 590–95 (2006), were subsequently enacted
by Congress. See Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006)
(codified as amended in scattered sections of 10, 18, 28, 42 U.S.C.). Revelations about warrantless
spying carried out by the President and aided by telecommunications companies—all apparently in
violation of FISA—were followed by an enactment ratifying the President’s surveillance activities and
giving telecommunications companies retroactive immunity. See Foreign Intelligence Surveillance Act
of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (2008); Protect America Act of
2007, Pub. L. No. 110-55, 121 Stat. 552 (2007); EDWARD C. LIU, CONG. RESEARCH SERV., RL34600,
RETROACTIVE IMMUNITY PROVIDED BY THE FISA AMENDMENTS ACT OF 2008 (2008); James Risen, Bush
Signs Law to Widen Reach for Wiretapping, N.Y. TIMES (Aug. 6, 2007), http://www.nytimes.com/2007/
08/06/washington/06nsa.html [https://nyti.ms/2jBuhqu]. One notable exception is the government’s
practice of torture, which ceased part way through the Bush Administration and was subsequently
repudiated by the Obama Administration. See S. SELECT COMM. ON INTELLIGENCE, supra note 58, at
15–16 (summarizing the demise of the Bush-era torture program); Exec. Order No. 13,491, 74 Fed.
Reg. 4,893–96 (Jan. 22, 2009) (strictly limiting the interrogation techniques that may be used by U.S.
agencies). More recently, however, President Trump has openly discussed bringing back torture,
although the Administration has taken no formal public steps in that direction. See Adam Serwer, Can
Trump Bring Back Torture?, ATLANTIC (Jan. 26, 2017), https://www.theatlantic.com/politics/archive/
2017/01/trump-torture/514463 [https://perma.cc/YL52-PRJH]. Congress has now enacted legislative
reforms regarding NSA bulk collection of domestic calling records, although many NSA surveillance
programs remain untouched. See USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268
(2015); David Cole, Reining in the NSA, N.Y. REV. OF BOOKS (June 2, 2015, 3:40 PM), http://www.
nybooks.com/daily/2015/06/02/nsa-surveillance-congress-sunset [https://perma.cc/7YVN-9MH9].
131. Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 76 (D.D.C. 2008).
132. See Memorandum in Support of Defendants’ Motion to Dismiss at 35–38, Citizens for
Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 164 F. Supp. 3d 145 (D.D.C. 2016) (No.
13-cv-1291).
133. In addition, the attorney–client privilege is sometimes invoked as a ground to keep authoritative
legal opinions secret. This argument fails to appreciate the unique function of legal advice by certain
2018] SECRET LAW 833

by the Attorney General or President, yet they are often unpublished.134 Many
former officials of the OLC have expressed the view that such opinions should
presumptively be published, acknowledging that absent special circumstances,
publishing such opinions would not harm the deliberative process of govern­
ment and might, in fact, improve it.135
The concern for protecting the deliberative process of government seems
misdirected in a fundamental way when the question is whether to disclose
law—the rules and interpretations that government officials regard as binding.
When one speaks of secret law, one is no longer in the realm of “deliberating”
over policy, but rather establishing it or carrying it out. To be sure, some legal
opinions may play an important role in deliberations over all manner of
government policy, but it cannot harm the integrity of those deliberations to
disclose their outcomes, including the legal positions and parameters accepted
as authoritative.136
In this Part, I have examined the normative terrain on which battles about
secret law are fought. I have surveyed the considerations that militate against
secret law and also those that motivate its use. But this broad account of the
normative concerns about secret law is perhaps too abstracted from the concrete
details of any particular case to offer guidance as to whether secret law is
justified. Accordingly, in the next Part, I identify five distinct and independent
criteria against which a particular instance of secret law can be measured. Each
of these criteria engages one or more of the broad normative considerations just
offered. By paying attention to these more concrete measures, it is possible to

government lawyers. Unlike an attorney advising a private client, legal opinions of Executive Branch
lawyers can, if regarded as binding statements of law, actually establish the law that the government
follows—not merely provide guidance about the law. See Brennan Ctr. for Justice v. U.S. Dep’t of
Justice, 697 F.3d 184, 207–08 (2d Cir. 2012).
134. See Morrison, supra note 24, 1725.
135. See, e.g., id. at 1724–26 (arguing that publication of OLC opinions is desirable to permit
meaningful checks and balances and to motivate OLC lawyers to write opinions that live up to the
standards of the office); see also Restoring the Rule of Law: Hearing Before the Subcomm. on the
Constitution of the S. Comm. on the Judiciary, 110th Cong. 186 (2008) (joint statement of David J.
Barron, Walter E. Dellinger, Dawn E. Johnsen, Neil J. Kinkopf, Martin S. Lederman, Trevor W.
Morrison, and Christopher H. Schroeder); Secret Law and the Threat to Democratic and Accountable
Government: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 110th
Cong. 126–27 (2008) [hereinafter Secret Law Hearing] (statement of Dawn E. Johnsen); Harold
Hongju Koh, Protecting the Office of Legal Counsel from Itself, 15 CARDOZO L. REV. 513, 517 (1993);
Setty, supra note 18, at 601–10. These authors—and OLC itself—have typically identified deliberative
process concerns as obstacles to disclosure only in narrow circumstances and instead cite the need to
protect classified information or circumvention of law enforcement as legitimate reasons for withhold­
ing. See, e.g., Morrison, supra note 24, at 1725; Memorandum from David J. Barron, Acting Assistant
Attorney General, for Attorneys of the Office 5–6 (July 16, 2010).
136. In some instances, legal opinions are peppered with information that could reveal the delibera­
tive process of the government. For instance, a legal opinion may include descriptions of rejected
policy options, the views of various stakeholders, or the internal history of a given proposal. But the
inclusion of such material cannot be grounds for keeping the legal content in an opinion secret; the
solution is simply to redact the deliberative material. Even if redaction is not feasible, it will often be
possible to prepare a legal summary divorced from sensitive facts.
834 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

identify what is truly in dispute in debates about the legitimacy of secret law
and what might be done about it.

III. EVALUATING SECRET LAWS

Too often, disputes about whether secret law is justified are pitched as a
simple contest between the government’s interests in secrecy and the public’s
desire for greater transparency. The dominant metaphor is the zero-sum game:
less secrecy would come at the expense of an increase in risk to national
security. 137 In some instances, the question may indeed come down to intrac­
table value contests of this kind. But this picture is too simple. As demonstrated
in the prior Part, there are multiple competing values at stake in debates over
secret law. And, as I seek to show in this Part, whether any one of these
competing norms is engaged depends on the extent to which the secret law
displays certain characteristics. Specifically, I identify five key characteristics of
secret laws that are particularly salient when assessing the merits of secrecy. In
many cases, it will be possible to modulate these characteristics—say, by
disclosing a more granular account of the secret rules without revealing opera­
tional details—in a way that better accommodates transparency values with
little increase in national security risk.
Put simply, secret laws vary. And in what follows, I discuss five key attributes
that characterize this variation. They are (1) the extent to which a secret law has
external effects on members of the public, (2) the extent to which the content of
the secret law is novel or unforeseeable in light of the publicly available laws on
the books, (3) the level of granularity at which the content of the law is
disclosed, (4) the likely duration of secrecy—in other words, whether the secret
law will predictably become public within a certain time frame, and (5) the
depth of the secret, or how broadly within and across branches of government a
secret law’s existence or its content have been disseminated. Each of these
attributes can be understood as defining a continuum. By paying attention to
where a given instance of secret law lies along these five axes, it may be
possible to see ways of reducing the tension between normative commitments
favoring transparency and those that press toward secrecy. At the very least, this
way of disaggregating the problem of secret law should permit a more nuanced
understanding of what is really at stake in any particular dispute about whether
secret laws should be kept secret.

137. See, e.g., David S. Kris, On the Bulk Collection of Tangible Things, 7 J. NAT’L SEC. L & POL’Y
209, 273–75 (2014) (explaining, with respect to the Covert Action statute and FISA laws, that “it might
be impossible, in many cases, to explain those [legal] interpretations [of the Covert Action statute]
without revealing the most sensitive classified information” and that for years the Intelligence Commu­
nity “concluded . . . that the legal interpretation [of FISA permitting bulk collection] was so embedded
in its factual and operational context that revealing it would harm national security”).
2018] SECRET LAW 835

A. EXTERNAL EFFECTS

Disputes about secret law can turn on the extent to which the law in question
affects the public, as contrasted with a law whose effects are solely internal to
the government. Although mere housekeeping rules that structure internal gov­
ernment operations will rarely draw criticism when kept secret, internal rules
that regulate how the government interacts with the public will often raise grave
concerns.138 Rules attaching penalties or other negative consequences to private
conduct will be the most controversial.139 Thus, disputes over secret law may
turn on the degree to which the law in question affects the public. The greater
and more direct the effects are on the public, the stronger the case against
secrecy.
Isolating external effects as an important characteristic of secret law makes
sense in light of the normative concerns, discussed above, that militate against
secret law.140 In particular, threats to individual liberty and democratic participa­
tion tend to grow in direct proportion to a secret law’s effects on the public. This
is because objections to secret law on the grounds of individual liberty are
strongest where individuals are directly affected by exercises of state power
according to secret rules. Likewise, democratic concerns are heightened where
the public is prevented from having a meaningful say about rules that directly
affect them.
This dynamic with respect to external effects can be neatly illustrated with an
example from the context of targeted killings and drone strikes. The legal
standards and procedures that set out when the government may engage in
targeted killings are directed internally—to the officials who decide and ulti­
mately carry out the targeted killing—but they also have momentous external
effects because they set out the circumstances in which a person is liable to be
killed without process.141 Secrecy in this context arouses strong opposition. By
contrast, the internal rules governing administrative aspects of the targeted
killing program—for example, the rules governing maintenance and testing of
remotely piloted aircraft used to carry out targeted killings142—typically have
fewer, if any, effects outside the government. Even if the two sets of rules were
equally hidden from the public, the targeting rules would provoke much more
justifiable opposition than the maintenance rules. This is precisely because only

138. Secret surveillance laws are a prime example of the latter type.
139. Examples of secret laws of this type include rules governing the No-Fly list and targeted
killings.
140. See supra Section II.A.
141. See N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 124–51 (2d Cir. 2014) (Appendix A)
(setting forth a redacted version of the OLC memo that provided the legal framework governing the
targeting of a U.S. citizen in Yemen).
142. See Whitney Amstutz, Reaper Maintainers Ensure ISR Mission Accomplishment, U.S. AIR
FORCE (Mar. 30, 2015), http://www.af.mil/News/Article-Display/Article/581953/reaper-maintainers­
ensure-isr-mission-accomplishment/.
836 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

the former rules immediately affect the public and, therefore, directly engage
anti-secrecy values of individual liberty and democratic oversight.

B. NOVELTY AND FORESEEABILITY

Another important dimension on which secret laws vary is the extent to

which they depart from the law available to the public. Put another way, one
might ask to what extent a member of the public with access only to the laws on
the books could reasonably foresee the content of the rules or interpretations
that the government has adopted in secret. Where secret rules depart aggres­
sively from foreseeable interpretations, the public is kept in the dark about what
the law is and—even more troubling—the public’s ability to rely on the
published laws is undermined. By adopting aggressive or unforeseeable interpre­
tations in secret, the government creates a smokescreen: the law on the books
provides a false sense that the public knows what the rules are, what powers the
government has, and what limits it must obey.
This mismatch between public expectations and secret reality about the
content of the law powerfully engages anti-secrecy values of democratic partici­
pation because the public cannot meaningfully engage with secret laws whose
content is unforeseeable. It also threatens individual liberty because the public
is kept in the dark as to the scope and limits of government authority.
Three examples make these points. The revelations in 2005 about President
Bush’s domestic warrantless surveillance program were so troubling because
the President and the NSA had issued secret directives and rules that directly
conflicted with the laws on the books.143 The NSA was operating according to
rules that nobody could have foreseen based on the public laws in question; in
fact, it was operating in ways specifically prohibited by the public laws in
question.144 The mismatch is what made this instance of secret law so shocking.
The foreseeability problem of secret law was again at the core of the
Snowden revelations about NSA surveillance. Before the disclosures, Senators
Ron Wyden and Tom Udall had been sounding the alarm that surveillance laws
had been interpreted, in secret, in ways that no outsider would recognize.145
From the Snowden documents we learned that, indeed, the FISC had reinter­
preted section 215 of the PATRIOT Act, which only authorized “production of
[] tangible things” that are “relevant to an authorized investigation,”146 to

143. See Secret Law Hearing, supra note 135, at 124 (testimony of Dawn E. Johnsen) (noting the
Bush Administration’s domestic surveillance program did not comply with the requirements of the
FISA).
144. In re Nat’l Sec. Agency Telecommc’ns. Records Litig., 700 F. Supp. 2d 1182, 1195–96 (N.D.
Cal. 2010) (quoting H.R. REP. NO. 95-1283, pt. 1, at 21 (1978)), aff’d in part, rev’d in part on other
grounds sub nom. Al-Haramain Islamic Found. v. Obama, 705 F.3d 845 (9th Cir. 2012).
145. See Charlie Savage, Senators Say Patriot Act Is Being Misinterpreted, N.Y. TIMES (May 26,
2011), http://www.nytimes.com/2011/05/27/us/27patriot.html [https//nyti.ms/2nx0ajy].
146. See 50 U.S.C. § 1861(a)(1), (b)(2)(A) (2012).
2018] SECRET LAW 837

permit mass collection of every American’s telephone records.147

By contrast, where an agency issues secret interpretations that are merely
reasonable and foreseeable interpretations of public rules, secret law may not be
a concern at all. Thus, for instance, there would be little concern if a secret FBI
rule permitted agents to use National Security Letters (NSLs) to obtain tele­
phone calling records not just for traditional landlines but also for cellphones
and VoIP phones; a member of the public reading the NSL statute—which
authorizes demands for “toll billing records”148—would not be surprised to
learn that the law covers calling records from all types of phones.
These examples illustrate the general point that secret law becomes more
problematic—and more difficult to justify—in proportion to the degree by
which it departs from public laws in ways unforeseeable to the public.

C. GRANULARITY

Secret laws vary with respect to the level of granularity at which they have
been described publicly. This constitutes a third dimension along which secret
laws can be measured. At the least granular level are descriptions of the broad
legal principles governing a national security program. For instance, a public
statement that various surveillance activities “shall be conducted in a manner
consistent with the [F]ourth [A]mendment to the Constitution of the United
States” is an extremely general description of the applicable rules.149 Such
statements reveal little about the specific rules that govern, and so they permit
little meaningful democratic participation or accountability regarding the sub­
stance of the law.
At the other end of the spectrum are the most detailed, granular rules for a
particular program, including the detailed rules that frontline officials must
follow when running a program, as well as any specific interpretations or
exceptions to those rules. Disclosing such granular details will alleviate transpar­
ency concerns but is also more likely to reveal the kind of sensitive facts about
secret programs that the government seeks to protect. It is in this terrain—
between rules that are uselessly general and revealingly specific—that debates
over secret law are typically waged. Indeed, many disagreements over the
propriety of secret law are best understood as disputes about the level of
granularity at which rules should be disclosed.
Take, again, the example of the NSL statute described briefly above.150 The
statute allows the FBI to order electronic service providers to turn over users’
“electronic communication transactional records” without first obtaining authori­
zation from a court.151 But “electronic communication transactional records” is

147. See Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 815–19 (2d Cir. 2015) (recounting the
FISC’s interpretation of section 215 and rejecting it as inconsistent with the PATRIOT Act).
148. 18 U.S.C. § 2709(b)(1) (2012).
149. 50 U.S.C. § 1881a(b)(5).
150. See supra note 148 and accompanying text.
151. 18 U.S.C. § 2709(a).
838 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

not defined in the statute or in any public rule. Without such disclosure, the
public only has a general sense of what the statute allows. It is clear, for
example, that it permits the FBI to obtain information like the “to,” “from,” and
“date/time” headers in emails. But what about, say, location information col­
lected by GPS-enabled phones?152 Or a history of searches entered into Google?
Or a history of websites visited? The FBI has resisted efforts to disclose how it
interprets the provision, contending that doing so would reveal a law enforce­
ment technique.153 At least one court has pushed back against this secrecy and,
as a result, we learned that the FBI had secretly interpreted “electronic communi­
cation transactional records” to encompass cell-site location information, which
can be used to identify the location of a cell phone.154
This kind of disagreement is essentially one about the level of granularity at
which internal rules and interpretations should be made public. Focusing on the
degree of specificity permits a sharper articulation of the normative dispute
between secrecy and transparency—in other words, whether disclosure of more
granular details is warranted in light of the benefits to transparency values and
any marginal risks of disclosure.

D. DURATION

A fourth important characteristic of secret laws is how long the public will be
kept in the dark. Limiting the length of time a secret law will stay secret serves
as a mechanism to modulate the tension with transparency values by setting an
expiration date on secret law. At a minimum, a time limit can ensure that the
determination of whether secrecy remains necessary will be revisited at regular
intervals. These kinds of time limits ease concerns about the separation of
powers and democratic oversight of secret law because they promise that such
checks and balances will only be postponed, not eliminated.
Although, in theory, time limits on secrecy can serve as important limits on
secret law, in practice they are a difficult solution. This is because a secrecy
determination, once made, carries with it the considerable weight of inertia. If
disclosure poses any conceivable risk, the status quo is likely to prevail. For this
reason, expressions of a non-binding commitment to divulge secret law within a
certain time period tend to founder.155 On the other hand, statutory time limits

152. See Jonathan Manes, Online Service Providers and Surveillance Law Transparency, 125 YALE
L.J. F. 343, 350 (2016), https://www.yalelawjournal.org/pdf/Manes_PDF_za9rzsda.pdf [https://perma.cc/
PH68-LDCQ].
153. See Doe v. Holder, 703 F. Supp. 2d 313, 316 (S.D.N.Y. 2010).
154. See Decision and Order at 19, Merrill v. Lynch, No. 14-cv-9763 (S.D.N.Y. Aug. 28, 2015),
https://yale.app.box.com/v/nicholas-merrill-sdny-decision [https://perma.cc/94PS-EJ36]. At the time this
Article was being written, the Supreme Court was considering a case that could clarify the law that
governs searches for cell-site location information, including whether the Fourth Amendment requires a
warrant in order to obtain such information. See Carpenter v. United States, 819 F.3d 880 (6th Cir.
2016), cert. granted, 137 S. Ct. 2211 (2017).
155. The manner in which the law governing NSA surveillance was disclosed provides an example
of this dynamic. For years prior to the Snowden disclosures, President Obama had signaled that he
2018] SECRET LAW 839

and other decision-forcing mechanisms156 can demand serious consideration

about whether secrecy remains necessary, requiring officials to make a con­
certed effort if they wish to prolong the status quo.157 The expected duration of
a secret law thus depends, in part, on the nature of any time limits and how they
are likely to be enforced.

E. DEPTH

Finally, some secret laws are more closely held than others. At the far end of
the spectrum are laws that are “deep secrets”—instances where the existence of
the law is closely held to a small group of similarly placed officials.158 At the
other end of the spectrum are laws that are widely shared across all three
branches of government and perhaps also with certain security-cleared contrac­
tors or other individuals outside government.
Secret laws are often less problematic the shallower they are. The deepest
secrets will be immune even from interbranch oversight, but shallower secrets
may be amenable to certain checks and balances.159 For instance, disclosing to
Congress (or to at least some of its members)160 the existence of a secret law

wished to have a broader debate about the scope of intelligence activities. See, e.g., Howard A.
Schmidt, Protecting Our Values and Cyberspace Together, WHITE HOUSE BLOG (Dec. 16, 2011, 7:41
PM), https://obamawhitehouse.archives.gov/blog/2011/12/16/protecting-our-values-and-cyberspace­
together [https://perma.cc/L6N7-MLC3]. But no disclosures or meaningful public debate were forthcom­
ing. It was only after the Snowden leaks that the government began to declassify its legal opinions and
directives. See Spencer Ackerman, FISA Judge: Snowden’s NSA Disclosures Triggered Important
Spying Debate, GUARDIAN (Sept. 13, 2013, 1:14 PM), https://www.theguardian.com/world/2013/sep/13/
edward-snowden-nsa-disclosures-judge [https://perma.cc/TG6N-LAWJ].
156. An example of a decision-forcing mechanism is the requirement that prosecutors disclose to
criminal defendants whether FISA surveillance was used to develop evidence in the government’s case.
See Patrick Toomey & Brett Max Kaufman, The Notice Paradox: Secret Surveillance, Criminal
Defendants & The Right to Notice, 54 SANTA CLARA L. REV. 843, 896–97 (2014).
157. But see generally Emily Berman, The Paradox of Counterterrorism Sunset Provisions, 81
FORDHAM L. REV. 1777 (2013) (arguing that sunset provisions may not be effective at prompting
reconsideration of national security policies).
158. See Pozen, supra note 21, at 267–75.
159. Pozen doubts that secret laws could ever remain particularly deep secrets, given that it is
typically necessary to involve relatively large numbers of people within the Executive Branch to
execute a law of any import. See id. at 274 n.51. The experience of the President’s Surveillance
Program illustrates these secrecy dynamics: at least for some length of time, the program was among
the deepest secrets of government, known only to a handful of government officials. See PSP REPORT,
supra note 1, at 14–15. As Pozen predicts, however, the program became a shallower secret as it grew,
until it was ultimately disclosed to the public by The New York Times (and then partially confirmed by
the President) approximately four years after it began. See Pozen, supra note 21, at 280–81; see also
PSP REPORT, supra note 1, at 16–17, 29, 36.
160. According to statute and interbranch practice, the administration often reveals secret law only
to a select few members of Congress. See Kitrosser, supra note 82, at 1054–58. This poses oversight
problems of its own. See id. at 1068–69 (describing the difficulties of meaningful congressional
oversight in this context). With respect to intelligence matters, the Covert Action statute permits the
administration to disclose presidential findings only to the so-called “Gang of Eight,” comprising the
most senior member of each party in the House and Senate and in the Intelligence Committees of each
house. See 50 U.S.C. § 3093(c)(2) (2012). The administration has sometimes chosen to disclose secret
laws to an even more limited subset of Congress. For instance, the first briefing regarding the
840 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

means that those members, in theory at least, can begin to agitate for greater
transparency and oversight.161 By contrast, where the law is known only to
certain parts of the Executive Branch, there are no opportunities for external
checks and balances and internal checks will be weakened.162
***
In this Part, I have sought to define a systematic rubric that assists in
determining whether secret law is acceptable in any given case, or at least to
clarify what is in dispute in any given debate over secret law. In the next Part, I
examine how these disputes are actually resolved in practice and when the law
permits the Executive Branch to keep the law secret.

IV. THE LAW OF SECRET LAW

In this Part, I shift away from normative and evaluative terrain to describe
how the practice of secret law is actually regulated. This is the “law of secret
law”—the legal ecosystem that governs whether and when internal law can be
kept secret from the public. This Part bridges the gap between the normative
concerns I have already discussed and the reform proposals that follow. By
examining how the practice of secret law is currently regulated, it will become
obvious that the existing legal ecosystem sets an equilibrium that produces far
too much secrecy. It will also become possible to envision a reform agenda that
could shift the equilibrium away from secrecy.
The law of secret law consists of a diverse and untidy set of sources. There is
no single constitutional provision or framework statute that enshrines a prin­
ciple against secret law or prescribes exceptions to such a principle. Instead,
there is a patchwork of statutes, constitutional provisions, judicial doctrines, and
legislative–executive practices that together constitute the law of secret law. The
sources of law include, notably, the Freedom of Information Act (applicable to
records held by the Executive Branch, except the President and his close
advisors),163 the Federal Register Act (applicable to the President and other
executive agencies),164 the Due Process Clause’s guarantee of notice (applicable
across branches),165 the common law and First Amendment right of access to
courts (applicable to judicial opinions),166 court rules and practices regarding

President’s warrantless surveillance program, in late October 2001, included only four members. See
PSP REPORT, supra note 1, at 16. Some months thereafter, the chief judge of the FISC was briefed on
the program. Id. at 17.
161. See Kitrosser, supra note 82, at 1069–70.
162. See supra notes 103–06 and accompanying text; see also Metzger, supra note 81, at 437–47
(arguing that external constraints reinforce internal checks within the Executive Branch and that
internal constraints can, in turn, permit greater external checks and balances).
163. 5 U.S.C. § 552 (2012).
164. 44 U.S.C. §§ 1501–1511 (2012).
165. U.S. CONST. amend. V; see Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 171 (1972)
(holding unconstitutional a statute that failed to provide notice of what conduct it prohibited).
166. U.S. CONST. amend. I; see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980)
(establishing First Amendment right of access to court proceedings); Co. Doe v. Pub. Citizen, 749 F.3d
2018] SECRET LAW 841

the sealing of judicial opinions,167 and the Presentment and Journal Clauses of
the Constitution (applicable to Congress).168 The law governing unauthorized
leaks might also be regarded as part of the law of secret law insofar as leaks are
a significant means by which secret laws come to light.169
Each of these sources of law regulates whether and when the law must be
made public or may be kept secret. Where these sources of law permit excep­
tions to a disclosure obligation—or impose no disclosure obligation at all—
there is space for the creation of secret law.
It is important to note that the boundaries between domains where the law
must be made public and those where it may arguably be kept secret are often
unclear or disputed. Determining where these boundaries lie is difficult when
the scope—or even the existence—of certain pockets of secret law may remain
unknown. In any case, I do not purport to provide a comprehensive statement of
the law of secret law, but rather a synoptic view of the most important features
of the legal ecosystem that regulates secret law in the Executive Branch. These
are the Due Process Clause, the Federal Register Act (and certain other statutory
disclosure obligations on Presidential lawmaking), and the Freedom of Informa­
tion Act. The description provided here will illustrate the overall structure of the
law of secret law and the key tensions and tendencies within it. It will also

246, 267–68 (4th Cir. 2014) (holding First Amendment right of access extends to court opinions);
Lowenschuss v. W. Publ’g Co., 542 F.2d 180, 185 (3d Cir. 1976) (“[U]nder our system of jurisprudence
the judiciary has the duty of publishing and disseminating its decisions.”).
167. See, e.g., United States v. Mentzos, 462 F.3d 830, 843 n.4 (8th Cir. 2006) (denying motion to
seal because “decisions of the court are a matter of public record” and no exception applied); Union Oil
Co. of Cal. v. Leavell, 220 F.3d 562, 567–68 (7th Cir. 2000) (rejecting party’s request to seal
proceedings because “judicial proceedings are public” and “genuine trade secrets” exception did not
apply); D. CONN. R. CIV. P. 5(e)(1)(b)(3) (discussing local rules for sealing). See generally Motion of the
American Civil Liberties Union for the Release of Court Records, In Re Ops. & Orders of This Ct.
Containing Novel or Significant Interpretations of Law at 11–15, No. 16-01 (Foreign Intel. Surv. Ct.
Oct. 19, 2016), https://law.yale.edu/system/files/area/center/mfia/document/2016_motion_2.pdf [https://
perma.cc/ETS4-RP26] (documenting the history of judicial publication of opinions).
168. U.S. CONST. art. I, § 5, cl. 3; id. art. I, § 7, cl. 2.
169. Unauthorized leaks are usually—but not always—illegal. See Mary-Rose Papandrea, Leaker
Traitor Whistleblower Spy: National Security Leaks and the First Amendment, 94 B.U. L. REV. 449,
490–512 (2014) (discussing the legal framework that governs leaks); David E. Pozen, The Leaky
Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127
HARV. L. REV. 512, 522–27 (2013) (same); Morton H. Halperin, Criminal Penalties for Disclosing
Classified Information to the Press in the United States, RIGHT2INFO.ORG (2012), http://www.right2info.
org/resources/publications/Halperin_CriminalPenaltiesforDisclosingClassifiedInformationtothePressin
theUnitedStates.pdf [http://perma.cc/5RYB-9K39] (same). Commentators disagree about whether the First
Amendment protects some leaks of classified information. Compare Heidi Kitrosser, Free Speech Aboard the
Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information, 6 J. NAT’L
SEC. L. & POL’Y 409, 411 (2013) (arguing in favor of First Amendment protection for classified information
leaks), and Papandrea, supra, at 453 (same), with GABRIEL SCHOENFELD, NECESSARY SECRETS: NATIONAL SECURITY,
THE MEDIA, AND THE RULE OF LAW 81 (2010) (contending that the First Amendment does not protect unauthor­
ized disclosures of classified information), Rodney A. Smolla, Information as Contraband: The First Amend­
ment and Liability for Trafficking in Speech, 96 NW. U. L. REV. 1099, 1167–68 (2002) (same), and Geoffrey R.
Stone, WikiLeaks and the First Amendment, 64 FED. COMM. L.J. 477, 485 (2012) (same).
842 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

motivate the reform proposals I describe in the next Part, which aim to make the
law of secret law more attentive to anti-secrecy values already discussed.

A. DUE PROCESS OBLIGATIONS TO DISCLOSE THE LAW

“Living under a rule of law entails various suppositions, one of which is that
‘[all persons] are entitled to be informed as to what the State commands or
forbids.’”170 The Due Process Clause has thus been interpreted to impose a
constitutional obligation on the state to say what the law is—at least sometimes.
The principle has its home in criminal law, where statutes defining offenses will
be struck down if they are too vague,171 will be interpreted narrowly where they
are ambiguous,172 and will only be applied prospectively.173 These constitu­
tional rules protect the principle that individuals may not suffer criminal
penalties or “grave” civil consequences174 if they cannot know in advance the
law to which they are subject.
These constitutional rules implicitly forbid secret law, but only where the law
quite directly regulates the public and only where it implicates constitutionally
protected interests. Under the Due Process Clause, there can be no criminal
prosecution, for example, for violating a secret law. But these safeguards apply
only where the law treads upon an individual’s constitutionally cognizable
interests in life, liberty, or property.175 Moreover, even where cognizable inter­
ests are engaged, the notice requirements of the Due Process Clause are weaker
where the law prescribes no criminal sanction or grave civil penalty.176 For
example, with respect to civil laws prescribing only monetary penalties, the
courts have required, in most cases, only “fair notice,” which can be satisfied
simply by informing the regulated entity, rather than the public at large, that
they are in violation of the law.177 Where an agency chooses to enforce its own
internal interpretations of a law or regulation, the Due Process Clause does not
require the agency to publish those internal—in other words, secret—
interpretations to the general public. Instead, the Due Process Clause is satisfied
if the agency simply provides the regulated entity with a private warning in
advance of enforcement that the agency believes particular conduct to be

170. Papachristou, 405 U.S. at 162 (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)
(alteration in original)).
171. See, e.g., Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952); Connally v. Gen.
Constr. Co., 269 U.S. 385, 391 (1926).
172. See, e.g., United States v. Bass, 404 U.S. 336, 347 (1971).
173. U.S. CONST. art. I, § 10, cl. 1.
174. See Jordan v. DeGeorge, 341 U.S. 223, 231 (1951) (considering vagueness challenge to law
specifying when an immigrant may be deported).
175. See U.S. CONST. amend. V.
176. See Jordan, 341 U.S. at 231 (applying due process protections established in criminal cases to
the context of civil deportation proceedings because of the “grave” consequences at stake).
177. See, e.g., Gen. Elec. Co. v. U.S. EPA, 53 F.3d 1324, 1328–29 (D.C. Cir. 1995) (applying “fair
notice” standard to EPA regulation enforceable by civil fine); Gates & Fox Co. v. Occupational Safety
& Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986) (applying “fair notice” standard in
context of sanctions for violating OSHA regulation).
2018] SECRET LAW 843

illegal.178
Due process obligations to publish the law are therefore fairly circumscribed;
in the national security context they may be narrower still. This question was
brought to court in the context of the targeted killings of U.S. citizens abroad. In
2009, the American Civil Liberties Union and Center for Constitutional Rights
filed suit arguing, among other things, that a planned drone strike targeting a
U.S. citizen in Yemen violated the Due Process Clause because the government
had failed to disclose the applicable legal rules and standards specifying when
citizens could be killed outside of a traditional battlefield context.179 In re­
sponse, the government argued that no such disclosure was required,180 offering
two reasons: first, that disclosure of the rules would harm national security,181
and second, that disclosure of the rules was unnecessary because the targeted
individual would know that playing an operational role in a terrorist organiza­
tion (as the individual in question was alleged to have done) made him liable to
be killed under general domestic and international law standards.182 In other
words, the government contended that in the national security context, due
process does not require the government to disclose its legal standards even for
killing U.S. citizens, so long as the citizen is presumed to be on notice that he is
liable to have his life taken.183 Courts in other cases implicating security
concerns have dismissed due process arguments for the disclosure of secret law
on similar grounds.184
Due process is weak protection in the national security context for another
reason: although programs like surveillance and watchlisting have serious
consequences for individuals and raise significant civil liberties concerns, they
may nevertheless fail to trigger any due process notice requirements because

178. See Gates & Fox Co., 790 F.2d at 156.

179. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 12 (D.D.C. 2010). In the interest of full disclosure,
the author was among counsel for the plaintiff in the lawsuit.
180. See Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support
of Defendant’s Motion to Dismiss at 29 n.14, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010)
(No. 10-cv-1469).
181. Id. at 29 n.14, 56.
182. Id. at 29 n.14. Of course, what those domestic and international law standards required was
precisely what was in dispute in the lawsuit.
183. The court ultimately did not reach the merits of these due process arguments, dismissing the
case under the political question doctrine and for lack of standing. See Al-Aulaqi, 727 F. Supp. 2d at 54.
184. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1135–36 (9th Cir. 2006), cert. denied, 127 S. Ct.
929 (2007) (declining to require the TSA to disclose its secret regulations regarding identification for
air travel, suggesting that due process notice requirements were diminished or absent because the
regulations did not have penal consequences, and that, in any case, the plaintiff received adequate
notice of the TSA’s policy when airline personnel told him—without permitting him to see the rules
themselves—that without identification he would be denied boarding); Latif v. Holder, 28 F. Supp. 3d
1134, 1141 & n.3 (D. Or. 2014) (refusing to disclose the regulations that govern the No-Fly List and
other government watch lists, contending that such information is “Sensitive Security Information”);
see also Amici Curiae Brief of the Electronic Frontier Foundation et al. in Support of the Petition for a
Writ of Certiorari at 5, Gilmore v. Gonzales, 435 F.3d 1125 (2006) (No. 06-211) (arguing that public
conduct cannot be governed by secret law).
844 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

they may not engage constitutionally protected interests in life, liberty, or

property.
Take, for instance, the rules governing how the government may collect data
pursuant to foreign surveillance authorities or the “minimization” rules that
dictate how the government must handle communications of U.S. citizens that
are intercepted.185 It matters a great deal to people whether and when such
information may be obtained and retained by the government, how and when it
can be shared with other agencies, whether it can be used to enforce ordinary
domestic criminal or civil laws, and whether it can be shared with private
entities like employers, educational institutions, private security companies,
data brokers, and others.186 Yet the rules governing all of these activities do not
appear to implicate due process because surveillance and data collection do not
directly set out prohibitions or obligations on individual conduct and probably
do not trigger any constitutionally protected liberty or property interests under
the Due Process Clause.187
Similarly, the secret rules that govern terrorism watchlisting programs typi­
cally do not implicate due process, except when a watch list is used as a basis to
interfere with a constitutionally protected right, such as the right to travel.188
Even then, due process may not require the government to disclose the stan­
dards it uses to make watchlisting decisions, but may only require notice to
individuals that they have, in fact, been watchlisted and perhaps the specific
reasons why they were listed.189

185. See supra notes 108–10 and accompanying text.

186. There is a large and growing literature exploring the nature of the harms that may result from
surveillance. See, e.g., NEIL RICHARDS, INTELLECTUAL PRIVACY: RETHINKING CIVIL LIBERTIES IN THE DIGITAL
AGE (2015); Julie E. Cohen, What Privacy Is For, 126 HARV. L. REV. 1904 (2013); Neil Richards, The
Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013).
187. To be sure, government surveillance may be regulated by the Constitution’s Fourth Amend­
ment. But the Fourth Amendment’s notice requirements are generally understood to require, at most,
notice to the target of a search that he or she has been searched. See Toomey & Kaufman, supra note
156, 851–59 (arguing that the Fourth Amendment should be interpreted to require notice of a search to
targets of government searches); Jonathan Witmer-Rich, The Rapid Rise of Delayed Notice Searches,
and the Fourth Amendment “Rule Requiring Notice,” 41 PEPP. L. REV. 509 (2014) (documenting the
increased use of “sneak and peek” searches in which notice to targets is delayed and arguing that such
searches violate a Fourth Amendment “rule requiring notice”). There may be an argument that the
Fourth Amendment requires more than individualized notice; perhaps the Fourth Amendment’s notice
and reasonableness requirements mean that targets of surveillance must have access to the rules that
govern such searches and not simply the fact that they have been searched. Such arguments, however,
are speculative under existing case law and await further development.
188. See Latif, 28 F. Supp. 3d at 1141 (considering a challenge to the No-Fly List).
189. In the No-Fly List case, where the court held that Due Process was implicated, the court did not
order the government to disclose the specific detailed criteria that it uses to determine whether to place
someone on the No-Fly List or to remove them. Id. The government subsequently amended its
procedures such that U.S. persons on the No-Fly List may sometimes learn at least some of the reasons
why they were listed. See Latif v. Sessions, No. 10-cv-750, 2017 WL 1434648, at *2–3 (D. Or. Apr. 21,
2017), appeal pending sub nom. Kariye v. Sessions, No. 17-35634 (9th Cir. Aug. 8, 2017).
2018] SECRET LAW 845

These examples show that due process is weak medicine against secret law
for a broad range of national security programs.190 Where laws do not prescribe
consequences that directly implicate constitutionally protected interests, due
process will have nothing to say. And even if due process rights are engaged,
they may be satisfied by providing individual notice or warnings, rather than by
publicly disclosing the governing rules.

B. SECRET PRESIDENTIAL LAWMAKING AND THE FEDERAL REGISTER ACT

The most prominent sources of law currently regulating secret law in the
Executive Branch are not constitutional but statutory: The Federal Register Act
(FRA) and The Freedom of Information Act (FOIA). These statutes purport to
require that legal rules be published but, as I will show, each offers plenty of
space for law to hide. I discuss the FRA and other potential legal constraints on
presidential discretion to make secret law in this section. In the next section, I
explain how FOIA regulates secret law in the Executive Branch more broadly.
The FRA was a landmark piece of legislation when enacted in 1935. It
established, finally, a centralized place where agency law would be published,
the Federal Register.191 The law was specifically meant to address a problem of
secret law; before its enactment, administrative lawmaking was so disorderly
and haphazard that even “[t]he officers of the government itself frequently [did]
not know the applicable regulations.”192 Administrative rules were secret not
because they were intentionally concealed but because they were buried inside
the many new and expanding federal bureaucracies of the New Deal era.
The FRA sought to fix the problem by mandating centralized publication of
“Presidential proclamations and Executive orders” of “general applicability and
legal effect” so long as they were not “effective only against Federal agencies or
persons in their capacity as officers.”193 In other words, executive laws that
regulated the public—those with the most direct external effects—should be
published.
Unfortunately, this mandate was mostly voluntary. The statute left it to the
President to determine which documents were of “general applicability and

190. See generally Erin Murphy, Paradigms of Restraint, 57 DUKE L.J. 1321 (2008) (describing
programs that evade due process protection).
191. Federal Register Act, Pub. L. No. 74-220, § 3, 49 Stat. 500, 500–01 (1935) (codified as
amended at 44 U.S.C. §§ 1501–1511 (2012)).
192. See Erwin N. Griswold, Government in Ignorance of the Law—A Plea for Better Publication of
Executive Legislation, 48 HARV. L. REV. 198, 204 & n.24 (1934). In two particularly embarrassing
instances, government lawyers litigated a criminal case up to the Supreme Court before realizing that
the regulations in question had been changed or withdrawn. See Panama Refining Co. v. Ryan, 293 U.S.
388, 412 (1935) (explaining that “the persons affected, the prosecuting authorities, and the courts, were
alike ignorant of the alteration” in the applicable provision of law, such that “the attack in this respect
was upon a provision which did not exist”); United States v. Smith, 293 U.S. 633 (1934) (dismissing
case upon discovering the regulation had changed); Griswold, supra, at 204 & n.24; The Federal
Register and the Code of Federal Regulations—A Reappraisal, 80 HARV. L. REV. 439, 440 & n.15
(1966).
193. See Federal Register Act § 5(a)(1).
846 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

legal effect” and therefore required publication.194 The law’s only unequivocal
requirement was to publish “document[s] or order[s] which . . . prescribe a
penalty.”195 This state of affairs continues to this day.196
As a result, the FRA is an extraordinarily weak protection against secret law,
giving the President broad discretion to determine which executive orders must
be published. Indeed, the requirements of the FRA can be entirely evaded
simply by calling a presidential directive something other than an “executive
order” or “proclamation.”197 Thus, unsurprisingly, presidents have been issuing
unpublished national security directives almost since the FRA was enacted,198
under names like Presidential Policy Directive or, more recently, National
Security Presidential Memorandum.199 According to the DOJ, such unpublished
directives have the same force of law as executive orders promulgated pursuant
to the FRA.200
The President’s discretion goes beyond issuing secret directives and extends
even to secretly modifying public directives. The administration of President
George W. Bush secretly revoked or modified public executive orders so that
the law on the books was not in fact the law being applied internally.201 Because
the changes were made via secret directives, both Congress and the public
remained unaware of the discrepancy for years.202
Congress has imposed only modest additional constraints on the President’s
power to make law in secret in the national security context. In some circum­
stances, Congress has imposed a requirement, often waivable, that certain

194. Id. § 5(a).

195. Id. § 5(a)(3).
196. Since 1954, the President has delegated to the Attorney General and Archivist the authority to
determine what must be published, but the applicable statutory requirements of the FRA remain
unchanged since enactment. See Exec. Order No. 10,530, 19 Fed. Reg. 2709, 2712 (May 12, 1954),
reprinted in 3 U.S.C. § 301 app. at 666 (2012); 44 U.S.C. §§ 1505–1506 (2012).
197. See Federal Register Act § 5(a)(1) (expressly applying only to “Presidential proclamations and
Executive orders”).
198. See HAROLD C. RELYEA, CONG. RESEARCH SERV., RL 98–611, PRESIDENTIAL DIRECTIVES: BACK­
GROUND AND OVERVIEW 9 (2008); John C. Duncan, Jr., A Critical Consideration of Executive Orders:
Glimmerings of Autopoiesis in the Executive Role, 35 VT. L. REV. 333, 357–58 (2010).
199. Each President appears to have chosen a different title for such orders. See RELYEA, supra note
198, at 8–12; see also U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-92-72, THE USE OF PRESIDENTIAL
DIRECTIVES TO MAKE AND IMPLEMENT U.S. POLICY 1–2 (1992); Presidential Directives and Executive
Orders, FED’N OF AM. SCIENTISTS, https://fas.org/irp/offdocs/direct.htm [https://perma.cc/X6SM-DRND].
200. See Legal Effectiveness of a Presidential Directive, as Compared to an Exec. Order, 24 Op.
O.L.C. 29, 29 (2000) (finding no “substantive legal difference between an executive order and a
presidential directive” and determining that, like executive orders, directives do not “lapse upon a
change of administration” but “remain effective until subsequent presidential action is taken”).
201. See Secret Law Hearing, supra note 135, at 124 (testimony of Dawn E. Johnsen). In 2008, a bill
was introduced in the Senate that would have required the President to publish notice of such secret
amendments in the Federal Register or, in the case of classified information, to notify certain members
of Congress. See Executive Order Integrity Act of 2008, S. 3405, 110th Cong. § 2 (2008). The bill was
never enacted. It is unclear whether the current administration claims this authority, or whether it has
been used.
202. See Secret Law Hearing, supra note 135, at 124–25, 128–29 (testimony of Dawn E. Johnsen).
2018] SECRET LAW 847

members of Congress—but not the public—must be informed. For instance, if

the President makes a determination that a congressional statute is unconstitu­
tional and, on that basis, declines to enforce or apply it, he typically must
inform certain members of Congress.203 Even this minimal requirement only
applies to “the promulgation of any unclassified Executive order or similar
memorandum or order,” thus apparently leaving the President free to determine
that a statute is unconstitutional in a classified directive without notifying
Congress at all.204 Thus, somewhat startlingly, the President is empowered to
make the momentous decision to unilaterally determine a statute is unconstitu­
tional without informing even Congress.
These weak congressional disclosure requirements can also be evaded by
creative lawyering. During the George W. Bush Administration, the DOJ often
avoided determining that statutes were unconstitutional—potentially triggering
a disclosure obligation—and instead deployed the canon of constitutional avoid­
ance to aggressively reinterpret statutes so that they would not apply in a given
circumstance.205 Such avoidance decisions are not subject to any statutory
disclosure obligations, allowing the Executive to achieve the same result as a
determination of unconstitutionality without triggering any statutory notification
requirement.206
Presidential discretion to issue secret law is also unregulated by FOIA.207 The
Office of the President and his immediate advisors are simply not subject to
FOIA’s disclosure requirements.208 This is not to say that presidential orders
with the force of law are entirely beyond FOIA’s reach; if such directives are
distributed beyond the President’s close advisors and a copy ends up residing
with another agency, then it may be subject to a FOIA request.209 But, like the

203. See 28 U.S.C. § 530D(a), (e) (2012). The President need only notify the leadership of each
party in each house, the general counsel of each house, and the chair and ranking members of each
house’s Committee on the Judiciary. § 530D(a)(2).
204. Id. § 530D(e) (emphasis added). Only the President enjoys this power. Other Cabinet officials—
notably the Attorney General—must always disclose to Congress when they decide not to apply a
statute on the grounds of its unconstitutionality. Id.
205. See Secret Law Hearing, supra note 135, at 128–29 (testimony of Dawn E. Johnsen); Johnsen,
supra note 106, at 1598–600.
206. See Secret Law Hearing, supra note 135, at 128–29 (testimony of Dawn E. Johnsen). A bill
introduced in 2008 would have required congressional notification when the Attorney General inter­
preted statutes to avoid constitutional concerns under Article II of the Constitution or separation of
powers principles. See OLC Reporting Act of 2008, S. 3501, 110th Cong. § 2 (2008). The bill was
never enacted.
207. The disclosure requirements of FOIA are discussed infra Section IV.C.
208. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980). But not
all components of the Executive Office of the President are exempt. Compare Soucie v. David, 448 F.2d
1067, 1075–76 (D.C. Cir. 1971) (holding Office of Science and Technology is subject to FOIA), with
Main St. Legal Servs., Inc. v. Nat’l Sec. Council, 811 F.3d 542, 553 (2d Cir. 2016) (explaining the
National Security Council is not subject to FOIA).
209. See, e.g., Ctr. for Effective Gov’t v. U.S. Dep’t of State, 7 F. Supp. 3d 16, 29 (D.D.C. 2013)
(ordering disclosure of Presidential Policy Directive that had been widely distributed within the
government).
848 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

FRA, FOIA leaves the President free to keep law secret in the first
instance.
The President thus enjoys significant latitude to exercise his lawmaking
functions in secret. Where the President decides not to share his determinations
with the public, he is essentially free to make that choice. Disclosure to
Congress is only sometimes required and these requirements, too, can be
evaded. The law of secret law leaves Presidents with remarkable latitude to
legislate in secret if and when they choose.

C. THE FREEDOM OF INFORMATION ACT

The Freedom of Information Act is perhaps the most important element of the
law of secret law. FOIA is the principal framework statute governing secrecy in
the Executive Branch and the public’s most powerful tool to force disclosure of
documents, including legal texts.210 It creates a presumption that all Executive
Branch records are public, subject only to certain enumerated exemptions.211
However, as explained below, those exemptions have increasingly been inter­
preted to authorize the government to withhold law, threatening to transform
FOIA from a statute that was meant as a bulwark against secret law into a
statute that legitimizes it.
FOIA was enacted in 1966, establishing a tripartite disclosure regime that
persists to this day. It requires, first, that some materials, including formal
statements of agency law, must be affirmatively published in the Federal
Register.212 Second, other materials, including agency opinions and interpreta­
tions, must also be made available automatically in reading rooms and on­
line.213 Third, any and all other agency records are presumptively available to
everyone—but only upon request.214
FOIA is most famous for this last provision, but the first two—which require
affirmative disclosure of agency law—are key elements of the law of secret law.
Specifically, the Federal Register provision requires disclosure of “substantive
rules of general applicability adopted as authorized by law” and “statements of
general policy or interpretations formulated and adopted by the agency,” in
addition to “the nature and requirements of all formal and informal procedures,”
“rules of procedure,” and “statements of the general course and method by

210. See Pozen, supra note 21, at 314 n.204 (describing FOIA as a “super-statute” and explaining
that “FOIA introduced a norm of open access to government documents that has commanded deep
public loyalty, taken on a quasi-constitutional valence, and spawned a vast network of imitator laws at
all levels of United States government and in democracies around the world. FOIA is such a good
example of a super-statute that it is surprising no one has assigned it the label yet.” (citing William N.
Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1216 (2001) for the term “super-
statute”)).
211. See U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 360–61 (1976); Oglesby v. U.S. Dep’t of
Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).
212. 5 U.S.C. § 552(a)(1) (2012).
213. See id. § 552(a)(2).
214. Id. § 552(a)(3).
2018] SECRET LAW 849

which [the agency’s] functions are channeled and determined.”215 The reading
room provision supplements these disclosure requirements by mandating that
agencies make available any other documents that might constitute authoritative
rules or guidance—in other words, “statements of policy and interpretations”
that are not otherwise published in the Federal Register, such as those that are
not of “general applicability,” as well as agency “opinions,” “orders,” and
“administrative staff manuals and instructions to staff that affect a member of
the public.”216
On their face, these two provisions appear to require affirmative disclosure of
much, perhaps all, secret law. On closer inspection they do much less. For
starters, the government takes a narrow view of its affirmative disclosure
obligations. For instance, the government has repeatedly maintained that OLC
opinions do not constitute the kinds of “opinions” or “interpretations” encom­
passed within FOIA’s reading room provision because such opinions are not
always formally “adopted” by the agency for which they are written.217
Worse still, FOIA allows agencies to fail to publish without significant
consequence. Courts have thus far done little to clarify the scope of the
affirmative disclosure provisions of FOIA218 and have only recently affirmed
that courts even have authority to order prospective compliance with those

215. Id. § 552(a)(1). The predecessor to this provision in section 3 of the Administrative Procedure
Act (APA) was narrower. For instance, the original provision, which FOIA replaced, limited the
publication requirement for “substantive rules . . . and statements of general policy or interpretations”
to those “adopted . . . for the guidance of the public.” Administrative Procedure Act (APA), Pub. L. No.
79-404 § 3(a), 60 Stat. 237, 238 (1946). The APA also completely excluded any “matter relating solely
to the internal management of an agency.” APA § 3. FOIA eliminated these provisions, suggesting it
was intended to require publication of general rules and policies governing internal operations of
government, and not just those imposing requirements on public conduct. See 5 U.S.C. § 552(a)(1)(D).
216. 5 U.S.C. § 552(a)(2). Again, the parallel provision in the original APA was much narrower,
requiring only that “all rules” be published as well as “final opinions or orders in the adjudication of
cases.” APA § 3(b). FOIA adds the requirements to disclose “statements of policy and interpretations”
not found in the Federal Register, as well as “administrative staff manuals and instructions to staff that
affect a member of the public.” 5 U.S.C. § 552(a)(2).
217. See, e.g., Memorandum in Support of Defendants’ Motion to Dismiss at 25–26, Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 164 F. Supp. 3d 145 (D.D.C. 2016) (No.
13-cv-1291).
218. The Campaign for Accountability is currently engaged in litigation seeking a prospective
injunction that would require the OLC to affirmatively disclose opinions that constitute binding law for
the Executive Branch. See Campaign for Accountability v. U.S. Dep’t of Justice, No. 16-cv-1068, 2017
WL 4480828, at *1 (D.D.C. Oct. 6, 2017). The district court dismissed the plaintiff’s complaint on the
grounds that its request for an order requiring disclosure of “all [OLC] opinions that have precedential
effect within the Executive Branch” failed to identify a sufficiently specific subset of OLC opinions
plausibly within the ambit of FOIA’s reading room provision. Id. at *1, *15–16 (emphasis in original).
The plaintiff subsequently identified five specific categories of OLC opinions that it contends are
subject to affirmative disclosure. See Amended Complaint for Injunctive and Declaratory Relief at
13–19, Campaign for Accountability, 2017 WL 4480828 (D.D.C. Oct. 27, 2017), https://
campaignforaccountability.org/work/office-legal-counsel-filings [https://perma.cc/Y3FZ-G9GP]. As of
this writing, litigation remains ongoing.
850 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

obligations.219 To be sure, FOIA does include a mechanism meant to incentivize

compliance: FOIA prevents agencies from relying on unpublished rules or
documents in administrative enforcement proceedings.220 But this mechanism is
perhaps utterly toothless in the national security context because, as explained
below, the government contends that it is under no obligation to disclose secret
law in the first place if the law has been classified or falls within another
exemption to FOIA.221 Moreover, even if the government were under an
obligation to publish secret rules, the provision of FOIA preventing agency
reliance on unpublished material has been severely weakened by the courts.222
As a result, even authoritative DOJ legal interpretations are not published as a
matter of course, and the rules that govern programs in the national security
context are even less frequently published.223 In short, it turns out that agencies
can readily evade affirmative disclosure requirements when it comes to secret
law.

219. The D.C. Circuit recently held that courts only have authority to enforce the affirmative
disclosure provisions of FOIA by ordering prospective disclosure to a particular requester; they lack
authority to order prospective disclosure to the general public. See Citizens for Responsibility & Ethics
in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017). As of this writing, the same
issue is on appeal in the Ninth Circuit. See Animal Legal Def. Fund v. U.S. Dep’t of Agriculture, No.
17-cv-949, 2017 WL 2352009, at *5 (N.D. Cal. May 31, 2017) (adopting the D.C. Circuit’s holding),
subsequent determination, 2017 WL 3478848 (N.D. Cal. Aug. 14, 2017), appeal filed, No. 17-16858
(9th Cir. Sept. 14, 2017).
220. FOIA provides that where an agency fails to publish a legal text as required—be it a rule,
opinion, or order—it cannot be used against a member of the public. See 5 U.S.C. § 552(a)(1)–(2)
(2012). But these preclusion rules are tempered by a statutory exception excluding an affected person
who has actual notice of the terms of the unpublished document. See id. § 552(a)(1). Thus, this
mechanism fails meaningfully to incentivize disclosure to the general public because notice to affected
individuals suffices. Such a weak preclusion rule does not incentivize agencies to publish laws they
would rather withhold.
221. As discussed below, the government has refused to disclose secret law by relying on FOIA’s
exemption for classified national security information and related exemptions. See infra notes 230–43
and accompanying text. Courts have largely endorsed this position in lawsuits seeking documents under
FOIA’s disclosure-upon-request provision. See infra notes 242–43 and accompanying text. The same
reasoning would appear to exclude classified or otherwise exempt rules from FOIA’s affirmative
disclosure provisions. See 5 U.S.C. § 552(b)(1) (stating that “[t]his section”—that is, the entire FOIA
including the affirmative disclosure provisions—“does not apply to matters that are specifically
authorized . . . to be kept secret in the interest of national defense or foreign policy and are in fact
properly classified.” (emphasis added)).
222. The requirement of individual notice has been weakened by the courts, which have essentially
adopted a harmless error rule: The government is precluded from using an unpublished rule against an
individual only if the individual can show that “they have been in fact adversely affected by the lack of
notice,” in the sense that “[they] would have been able to pursue an alternative course of conduct” or
otherwise avoid the consequence envisioned by the secret law had the law in question had been
published. All. for Cannabis Therapeutics v. DEA., 15 F.3d 1131, 1136 (D.C. Cir. 1994) (internal
quotation marks and citation omitted).
223. See Memorandum from David J. Barron, Acting Assistant Attorney General, to OLC Attorneys
1, 5–6 (July 16, 2010), http://www.justice.gov/sites/default/files/olc/legacy/2010/08/26/olc-legal-advice­
opinions.pdf [https://perma.cc/2RFH-RNXE] (describing “best practices OLC attorneys should follow
in providing . . . formal written opinions”); Campaign for Accountability, 2017 WL 4480828, at *4.
2018] SECRET LAW 851

Equally important to the law of secret law are the exemptions written into
FOIA itself.224 FOIA includes nine enumerated categories of records not subject
to disclosure that permit the government to withhold records even in response to
a specific disclosure request.225 If secret law can be withheld under any of these
exemptions, FOIA becomes a license for secret law rather than a limit.
There is good reason to believe that the exemptions were not meant to permit
withholding of agency law. FOIA was enacted specifically to correct the deficien­
cies of its predecessor, the Administrative Procedure Act, which gave agencies
essentially unfettered discretion to withhold agency law and other material.226
Against this backdrop, FOIA’s affirmative disclosure provisions were meant to
ensure both that law would not remain practically obscure227 and that officials
would be required to publish agency law in the first place.228 Relatedly, it has
long been clear that FOIA’s exemptions “must be narrowly construed” to
advance “the basic policy that disclosure, not secrecy, is the dominant objective
of the Act.”229
In FOIA’s early years, the courts strongly endorsed this view, establishing the
“secret law” doctrine (also known as the “working law” doctrine) that limited
the scope of FOIA exemptions so that they could not be used to withhold
agency law.230 The Supreme Court explicitly endorsed this anti-secret law

224. See 5 U.S.C. § 552(b).

225. See id.; Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 564 (2011).
226. Section 3 of the original APA permitted secrecy even of formal rules whenever “there is
involved any function of the United States requiring secrecy in the public interest.” Pub. L. No. 79-404
§ 3, 60 Stat. 237, 238 (1946). With respect to reading room materials, agencies had additional discretion
to refuse to publish “for good cause.” Id. § 3(b). And the APA’s catch-all provision for public access to
official records—the predecessor to the modern day disclosure-upon-request provision—contained a
“double-barreled loophole” allowing disclosure only “to persons properly and directly concerned” and
even then allowing agencies to refuse disclosure “for good cause found.” S. REP. NO. 89-813, at 5
(1965). The Senate, in passing FOIA, explained that the APA had “been used more as an excuse for
withholding than as a disclosure statute.” Id. at 3.
227. See 5 U.S.C. § 552(a)(2) (2012).
228. See Frank H. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of
Information Act, 9 J. LEGAL STUD. 775, 777 (1980) (“[T]he primary objective is the elimination of
‘secret law.’ Under the FOIA an agency must disclose its rules governing relationships with private
parties and its demands on private conduct.”).
229. U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
230. The secret law doctrine dates to FOIA’s early days, when courts recognized that the statute was
intended to do away with—or at least limit—secret law. A mere two years after FOIA came into force,
the D.C. Circuit ordered the government to disclose an internal memorandum that constituted the legal
rationale for a series of decisions ordering repayment of certain subsidies. See Am. Mail Line, Ltd. v.
Gulick, 411 F.2d 696, 704 (D.C. Cir. 1969). Subsequent cases elaborated this theme, consistently
rejecting efforts by the government to withhold a variety of secret laws, including authoritative
memoranda providing reasons for agency decisions, see Sterling Drug Inc. v. FTC, 450 F.2d 698, 708
(D.C. Cir. 1971); documents embodying agency policy determinations, see Ash Grove Cement Co. v.
FTC, 511 F.2d 815, 818 (D.C. Cir. 1975); and legal opinions issued by agency counsel relied upon by
frontline staff, see Coastal States Gas Corp. v U.S. Dep’t of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980).
As the D.C. Circuit explained in 1971, “binding agency opinions and interpretations . . . are not the
ideas and theories which go into the making of the law, they are the law itself, and as such should be
made available to the public.” Sterling Drug Inc., 450 F.2d at 708. This construction of FOIA was
852 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

principle in 1975 in NLRB v. Sears, Roebuck & Co.231 In that case, the
government argued that certain agency interpretations of law were exempt
under Exemption 5, which permits the withholding of internal government
communications that are subject to privilege, particularly the deliberative pro­
cess privilege.232 The Court rejected this argument, holding that “Exemption 5,
properly construed, calls for ‘disclosure of all “opinions and interpretations”
which embody the agency’s effective law and policy.’”233 The Court reasoned
that the structure of the Act, particularly the provisions regarding automatic
publication of agency law, “represents a strong congressional aversion to ‘secret
(agency) law,’ and represents an affirmative congressional purpose to require
disclosure of documents which have ‘the force and effect of law.’”234
Some lower courts subsequently extended the secret law doctrine articulated
in Sears, Roebuck & Co. to limit the scope of other privileges that can be
asserted under Exemption 5, including the attorney–client privilege.235 The
secret law doctrine also acted as a limit on the now-defunct “High 2” exemp­
tion, which permitted agencies to withhold documents that could be used to
“circumvent agency regulation.”236
But in more recent years, the courts have retreated from this anti-secret law
principle, progressively narrowing the scope of the secret law doctrine, declin­
ing to extend application of the doctrine beyond Exemption 5, and explicitly
permitting the government to maintain secret law in cases involving national
security and law enforcement exemptions. Indeed, a number of district courts
have now found that the secret law doctrine is no limit to Exemption 1 (which
permits the withholding of properly classified information),237 Exemption 3
(which incorporates statutory protections specific to the CIA, NSA, and other

explicitly described as serving a statutory policy against secret law: “The purpose of this limitation is to
prevent bodies of ‘secret law’ from being built up and applied by government agencies.” Schwartz v.
Internal Revenue Serv., 511 F.2d 1303, 1305 (D.C. Cir. 1975).
231. 421 U.S. 132, 153 (1975).
232. See id. at 148; see also 5 U.S.C. § 552(b)(5) (2012).
233. Sears, 421 U.S. at 153 (citation omitted).
234. Id. (citations omitted).
235. See Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 207–08 (2d Cir. 2012); Tax
Analysts v. IRS, 117 F.3d 607, 619 (D.C. Cir. 1997). But see Am. Civil Liberties Union v. NSA, No.
13-cv-9198, 2017 WL 1155910, at *10–11 (S.D.N.Y. Mar. 27, 2017) (holding that the secret law or
“working law” doctrine does not apply to the presidential communications privilege).
236. In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en
banc), the D.C. Circuit held that Exemption 2, which by its terms permits withholding of documents
“related solely to the internal personnel rules and practices of an agency,” 5 U.S.C. § 552(b)(2), also
encompassed a broad exemption for documents where “disclosure significantly risks circumvention of
federal statutes or regulations.” Crooker, 670 F.2d at 1053. The Court imported the “secret law”
doctrine as a limit on the exemption. Id. at 1073 (considering and rejecting whether the documents in
question constituted secret law). Thirty years later, the Supreme Court overruled Crooker, holding that
Exemption 2 does not include any exemption for risks of circumvention at all, and that it is only
concerned with personnel and human resources matters. See Milner v. U.S. Dep’t of Navy, 562 U.S.
562, 573–77 (2011).
237. 5 U.S.C. § 522(b)(1).
2018] SECRET LAW 853

agencies),238 and Exemption 7(E) (which permits the withholding of law enforce­
ment “techniques and procedures”).239 The trend in these cases has been to find
that the secret law doctrine simply does not apply to these exemptions.240 In
other words, the government can use these exemptions to withhold documents
that articulate internal law on the same basis that it can withhold any ordinary
document.241 The Second Circuit, in dicta, brushed aside the notion that the
working law doctrine stands as a limit to withholding “documents [that] are
classified and thus protected under Exemption 1.”242 In an unpublished opinion,
the D.C. Circuit appears to have held that Exemption 1 permits the withholding
of documents even if doing so would, as the plaintiff argued, “effectively
sanction secret law in contravention of FOIA’s principal purposes.”243
In addition to refusing to extend the secret law doctrine as a limit to national
security and law enforcement exemptions, the lower courts have taken a narrow
view of what even constitutes law for purposes of the existing secret law
doctrine under Exemption 5. The D.C. Circuit requires that the legal text in
question be “expressly adopted” by an agency or “incorporate[d] by reference”
into its policy.244 Courts have come to interpret these requirements stringently,
rejecting a pragmatic approach to whether a legal text constitutes working law
and instead requiring formal, explicit, and overt adoption of a legal rule or
opinion for it to come within the secret law doctrine. For instance, the courts
have repeatedly held that OLC opinions can be withheld on the grounds that the

238. Id. § 522(b)(3).

239. Id. § 522(b)(7)(E).
240. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, No. 12-cv-7412, 2014 WL 956303, at
*8 (S.D.N.Y. Mar. 11, 2014) (holding that there is no “secret law” exception to the government’s
authority to withhold law enforcement investigative techniques pursuant to FOIA Exemption 7(E));
N.Y. Times Co. v. U.S. Dep’t of Justice, 915 F. Supp. 2d 508, 535, 540 (S.D.N.Y. 2013) (holding that
legal analysis can be classified “if it pertains to matters that are themselves classified” and holding with
respect to Exemption 3, that “it may well be that legal analysis in a particular document is inextricably
intertwined with information that is statutorily exempt from disclosure, including information about
intelligence sources and methods that is statutorily exempt from disclosure”), rev’d in part on other
grounds, 756 F.3d 100 (2d Cir. 2014); N.Y. Times Co. v. U.S. Dep’t of Justice, 872 F. Supp. 2d 309, 317
(S.D.N.Y. 2012) (declining “the invitation to read a ‘secret law’ exception into the FOIA exemptions”
and specifically rejecting such an exception in the face of a claim for withholding under Exemptions 1
and 3); Am. Civil Liberties Union v. Office of the Dir. Of Nat’l Intelligence, No. 10-cv-4419, 2011 WL
5563520, at *8 (S.D.N.Y. Nov. 15, 2011) (suggesting that agency could withhold under Exemption 1
“legal memoranda, procedures, policies, directives, practices, or guidelines pertaining to Section 702
surveillance” if it provided adequate explanation for why disclosure “would reveal information about
the U.S. Intelligence Community’s capabilities, priorities, and activities”) (internal quotation marks
omitted), subsequent determination, 2012 WL 1117114, at *4 (S.D.N.Y. Mar. 30, 2012) (upholding
agency determination to withhold records under Exemption 1); Ctr. for Int’l Envtl. Law v. Office of the
U.S. Trade Representative, 505 F. Supp. 2d 150, 159 (D.D.C. 2007) (holding that government could
withhold as classified the U.S. interpretation of terms in a trade agreement if it were able to show harm
to U.S. negotiating efforts and foreign relations).
241. See Jaffer & Kaufman, supra note 20, at 242–43.
242. N.Y. Times Co. v. U.S. Dep’t of Justice, 806 F.3d 682, 687 (2d Cir. 2015).
243. Am. Civil Liberties Union v. U.S. Dep’t of Justice, 640 F. App’x 9, 12 (D.C. Cir. 2016) (per
curiam) (internal quotations omitted).
244. See Elect. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 10–12 (D.C. Cir. 2014).
854 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

agency that sought the legal opinion did not formally adopt or incorporate the
entire opinion into its own policy, even if the OLC opinion did, in practice,
authoritatively set legal parameters for the agency.245
This formalist approach to what constitutes agency law radically narrows
FOIA’s protection against secret law. So long as the government officially
disclaims formal adoption of a legal interpretation or rule, the government may
withhold memoranda, directives, and opinions that are—as a matter of social
fact and actual agency practice—treated as binding on government officials.246
Still worse, the courts have placed the burden of proof on the FOIA requester to
demonstrate whether the legal opinion sought has in fact been formally adopted
as agency policy—even though the government is typically the only party in a
position to know whether that is the case.247
These developments in the secret law doctrine have essentially drawn a
roadmap for agencies to create secret law, rather than putting up a roadblock
against it. Agencies wishing to keep law secret simply need to take care not to
explicitly or overtly “adopt” a legal interpretation as “policy.” Even when a
legal rule or interpretation is officially adopted, it can be withheld just as easily
as any other agency record simply by marking it “classified” or invoking
another national security or law enforcement exemption.
Thus, paradoxically, FOIA—a statute that was intended to uproot secret
law—is being interpreted to codify the Executive’s discretion to keep law
secret. In the absence of judicial or legislative intervention to reverse this trend
toward endorsing secret law, FOIA may serve to institutionalize secret law as a
prerogative of the Executive Branch.
In addition, for structural and practical reasons, FOIA would be an imperfect
check against secret law even if it had not been interpreted to allow secret law.
Most importantly, to file a FOIA request, a member of the public must know
what to ask for, and from whom.248 But there is nothing in FOIA that requires
the government to inform the public about the rules or interpretations that it has
adopted in secret; secrecy determinations are themselves typically made in
secret. So members of the public will often be in a position only to make an
educated guess about what secret law may exist—relying on press reports,

245. See, e.g., N.Y. Times Co., 806 F.3d at 687; Elect. Frontier Found., 739 F.3d at 10 (“Even if the
OLC Opinion describes the legal parameters of what the FBI is permitted to do, it does not state or
determine the FBI’s policy.”); Jaffer & Kaufman, supra note 20, at 246.
246. See Jaffer & Kaufman, supra note 20, at 249.
247. See N.Y. Times Co. v. U.S. Dep’t of Justice, 915 F. Supp. 2d 508, 546–49 (S.D.NY. 2013)
(permitting government to withhold OLC memo regarding targeted killing of citizen on grounds
plaintiffs could not prove that the memo had been “expressly adopted” or that the memo sought was the
basis for public comments of the government legal position on the issue), rev’d in part, 756 F.3d 100
(2d Cir. 2014).
248. See 5 U.S.C. § 552(a)(3)(A) (2012) (noting request must be submitted to particular agency and
“reasonably describe” records sought). Many agencies have divided themselves into multiple distinct
units for FOIA purposes, further complicating the requester’s task. See, e.g., 28 C.F.R. §§ 16.1(c),
16.3(a) (2017) (describing DOJ’s decentralized system for processing FOIA requests).
2018] SECRET LAW 855

anecdotal experience dealing with agencies, or other sources—and then to file

FOIA requests on that basis. This is a significant obstacle. When it comes to
secret law, the public does not always know what it does not know. Law, in
other words, may be an “unknown unknown” in the sense that even the fact of
its existence is uncertain.
Even in cases in which members of the public have reason to suspect that
secret law exists, the government has many tools at its disposal to delay or deny
disclosure in response to a request. For instance, the government can simply fail
to respond and hope the requester never files suit to enforce her request.249 The
government can also put up obstacles to disclosure by refusing even to confirm
or deny whether a secret law exists.250 This amounts to a claim that the fact of
the secret law’s existence (or nonexistence) is properly kept secret.251
Finally, litigation over even a limited subset of legal texts can take years and
an enormous commitment of legal resources from public interest organizations
or the press.252 So even where litigation is ultimately successful, the public will
typically remain in the dark for years, and disclosure will lag any changes in the
substance of the secret law that have occurred while the litigation was pending.
For all of these reasons, FOIA is a cumbersome, inefficient, and often ineffec­
tive means of enforcing a government obligation to make law public.
***
As should be clear by now, the legal ecosystem governing secret law—from
Due Process to the Federal Records Act to FOIA—provides broad discretion to
create and maintain secret law. Affirmative disclosure rules meant to require
publication of agency law turn out to be essentially voluntary or easily evaded.
The President has explicit authority to issue—or modify—directives in secret.
Agencies can operate according to secret legal interpretations and rules by
taking advantage of courts’ formalist view of what counts as working law.

249. FOIA requires a response within twenty days, but this is perhaps the most frequently violated
law in the U.S. Code. See 5 U.S.C. § 552(a)(6)(A)(i). The remedy for a violation is that a requester may
file suit. Id. § 552(a)(6)(C).
250. This is known as a “Glomar” response. See Nathan Freed Wessler, “[We] Can Neither Confirm
Nor Deny the Existence or Nonexistence of Records Responsive to Your Request”: Reforming the
Glomar Response Under FOIA, 85 N.Y.U. L. REV. 1381, 1382 (2010). For an entertaining history of the
Glomar response—including where it got its name—see Neither Confirm Nor Deny, RADIOLAB (Feb. 12,
2014, 4:00 PM), http://www.radiolab.org/story/confirm-nor-deny [https://perma.cc/3VJS-N5DZ].
251. See Pozen, supra note 21, at 313 n.203 (discussing the relationship between the Glomar
response and deep secrets).
252. For example, the first lawsuit seeking disclosure of the legal basis for targeted killings was filed
in June 2010. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 808 F. Supp. 2d 280, 284 (D.D.C.
2011) (Note: the author was among counsel for the plaintiffs in the initial stages of that litigation.). It
took a separate lawsuit and four years of litigation before a single legal opinion on the issue was
disclosed. See N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014). That litigation
continued for two more years, producing only a handful of additional documents. See Am. Civil
Liberties Union v. U.S. Dep’t of Justice, 844 F.3d 126 (2d Cir. 2016). Related litigation remained
ongoing at the time of writing. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, No. 15-cv-1954,
2016 WL 8259331 (S.D.N.Y. Aug. 8, 2016), appeal pending, No. 17-157 (2d Cir. Jan. 18, 2017).
856 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

Agencies can also simply stamp the relevant documents “classified” and with­
hold them under Exemption 1 or take advantage of related FOIA exemptions for
national security or law enforcement information. In such cases, the courts will
not enforce any secret law doctrine and will almost always defer to Executive
Branch determinations.253 As the courts have retreated from any robust anti-
secret law principles, what has been left behind is a system that gives the
Executive Branch enormous and mostly unchecked discretion to decide whether
to keep its internal law secret.

V. REFORMING THE LAW OF SECRET LAW

The legal ecosystem that governs secret law is a surprisingly permissive
place. The Executive Branch has broad discretion to adopt rules and interpreta­
tion in secret. Seen in this light, it is perhaps not surprising at all that secret law
has become a regular feature of national security governance. Although Execu­
tive Branch officials may share and respect the transparency values that militate
against secret law, the overriding and more immediate interests of the Executive
almost always favor secrecy.254 Without effective checks and balances against
secret law in the Executive Branch, the equilibrium between transparency and
secrecy will be set in favor of the latter.
As we have seen, the existing legal regime imposes few checks on this
discretion. Courts have declined to interpret or enforce FOIA and other laws in
ways that would impose real limits on the discretion of the Executive Branch to
establish secret law.255 Congress has some inherent power to act as a check on
secret law—for example, by threatening to hold up Executive Branch nomina­
tions or by otherwise frustrating administration priorities—but it has been
reluctant to use these tools aggressively.256 In some instances, the combined

253. See generally Margaret B. Kwoka, Securing Access to National Security Information, 67
ADMIN. L. REV. ACCORD 78 (2014); Susan Nevelow Mart & Tom Ginsburg, [Dis-]Informing the People’s
Discretion: Judicial Deference Under the National Security Exemption of the Freedom of Information
Act, 66 ADMIN. L. REV. 725 (2014).
254. From the perspective of an official deciding whether to keep rules secret, the risks from
disclosure—any incremental threat to national security—will be much more vivid than the dispersed
benefits of transparency. Indeed, it is the primary job of those in the national security establishment to
look for such risks and avoid them whenever possible. Moreover, once a secrecy decision is made in the
bureaucracy, it enjoys the benefit of inertia. Changing course in favor of more disclosure will face
often-insurmountable hurdles, typically involving significant interagency consultation and consensus.
These and other incentives toward executive secrecy have been widely explored in the literature on
government overclassification, and there is little reason to believe they would be any less powerful
when it comes to secret law. See, e.g., ELIZABETH GOITEIN & DAVID M. SHAPIRO, BRENNAN CENTER FOR
JUSTICE, REDUCING OVERCLASSIFICATION THROUGH ACCOUNTABILITY 21–32 (2011); Steven Aftergood,
Reducing Government Secrecy: Finding What Works, 27 YALE L. & POL’Y REV. 399, 401–04 (2009).
255. See supra Section IV.C.
256. As a formal matter, each house of Congress also reserves the right to publicly disclose
classified information upon a majority vote, but that mechanism has never been invoked. See Kitrosser,
supra note 82, at 1080–83.
2018] SECRET LAW 857

pressure from litigation, Congress, the media, unauthorized leaks,257 and the
public has—over the course of several years—prompted the administration to
voluntarily change course and disclose some secret law.258 That this kind of
“transparency campaign” is necessary to make a particular secret law public
demonstrates that our current system is one in which the legal equilibrium
permits far too much secrecy. Executive discretion to keep law secret is effectively
governed by the vicissitudes of politics and whistleblowers—not by law.
A reform agenda for secret law would reset this equilibrium by creating a
legal regime that gives significant weight to transparency values and renders

257. In recent years, secret law has almost always come to light as a direct or indirect result of
unauthorized, extralegal leaks. The Snowden disclosures of NSA surveillance are the prime example,
but other examples abound. See, e.g., Glenn Greenwald & Betsy Reed, Secret Docs Reveal: President
Trump Has Inherited an FBI with Vast Hidden Powers, INTERCEPT (Jan. 31, 2017, 7:38 AM), https://
theintercept.com/2017/01/31/secret-docs-reveal-president-trump-has-inherited-an-fbi-with-vast­
hidden-powers/ [https://perma.cc/T3LZ-W2SQ] (reporting on leak of previously redacted portions of
FBI Domestic Investigations and Operations Guidance and other documents); Michael Isikoff, Justice
Department Memo Reveals Legal Case for Drone Strikes on Americans, NBC NEWS (Feb. 4, 2013, 5:57
PM), http://investigations.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals­
legal-case-for-drone-strikes-on-americans?lite [https://perma.cc/4GSR-HK9P] (reporting on leaked DOJ
white paper describing legal rules governing targeted killings of U.S. citizens); Dana Priest & R. Jeffrey
Smith, Memo Offered Justification for Use of Torture, WASH. POST (June 8, 2004), http://www.
washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html [https://perma.cc/7LEB-TMLD] (report­
ing on leaked memo authorizing torture); James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers
Without Courts, N.Y. TIMES (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/bush-lets-us­
spy-on-callers-without-courts.html?smid=pl-share [https://nyti.ms/2k90zpQ] (reporting on leaked de­
tails of warrantless wiretapping rules).
258. The disclosure of the memo governing targeted killing of citizens is a prime example of a
transparency campaign slowly prying secret law loose. Litigation seeking to force disclosure of the
memos began in 2010 but foundered for years, with judges repeatedly deferring to the government’s
claims of secrecy. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 808 F. Supp. 2d 280, 301
(D.D.C. 2011) (upholding secrecy), rev’d sub nom. Am. Civil Liberties Union v. CIA, 710 F.3d 422
(D.C. Cir. 2013) (holding government could no longer refuse to confirm or deny existence of records
but remained free to resist disclosure on other grounds); Complaint, Am. Civil Liberties Union v. U.S.
Dep’t of Justice, No. 10-cv-436 (D.D.C. June 1, 2010) (seeking the release of records relating to the use
of drones to target and kill individuals); N.Y. Times Co. v. U.S. Dep’t of Justice, 915 F. Supp. 2d 508,
553 (S.D.N.Y. 2013) (upholding secrecy), rev’d, 756 F.3d 100 (2d Cir. 2014) (holding government
waived secrecy and privilege as to legal analysis of OLC memorandum). In the meantime, Congress
applied pressure by holding up the nomination of John Brennan to lead the CIA. See Michael D. Shear
& Scott Shane, Congress to See Memo Backing Drone Attacks on Americans, N.Y. TIMES (Feb. 6,
2013), http://www.nytimes.com/2013/02/07/us/politics/obama-orders-release-of-drone-memos-to­
lawmakers.html [https://nyti.ms/2jHsjGD]. As a result, it seems, Congress disclosed the OLC memo to
the congressional intelligence committees. Id. At nearly the same time, the press obtained a leaked copy
of an unofficial DOJ “white paper” summarizing the still-secret memo. See Isikoff, supra note 257. The
Second Circuit subsequently ordered disclosure of parts of the memo on the grounds that the
government had waived its right to withhold it by disclosing the white paper and other information.
N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 116–17, 124 (2d Cir. 2014). Under pressure from
Congress, which was holding up the nomination of David Barron, the author of the OLC memo, to a
judgeship on the First Circuit, the government elected not to seek further appellate review and
voluntarily disclosed the memo with redactions. See Ashley Parker, Memo Approving Targeted Killing
of U.S. Citizen to Be Released, N.Y. TIMES (May 20, 2014), https://www.nytimes.com/2014/05/21/us/
politics/memo-approving-targeted-killing-of-us-citizen-to-be-released.html?smid=pl-share [https://nyti.
ms/2jHJ84p].
858 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

secret law an exceptional practice that is permitted, if at all, only where truly
necessary and justified.259 In what follows, I offer certain principles that should
guide any such reform efforts and outline one promising pathway for reform
that calls upon the authority and expertise of both the courts and Congress to
rein in the practice of secret law in the Executive.

A. PRINCIPLES FOR REFORM OF SECRET LAW

The brief tour of the current law of secret law in Part IV, combined with the
distinctions among secret laws introduced in Part III, point to a reform agenda
that would rein in the practice of secret law. I propose three essential principles
to guide such reform.
First, there should be no such thing as a secret law whose very existence is a
secret. When it comes to rules that govern the conduct of officials, the public
must always know—at a minimum—that a secret law exists.260 Second, the
extent of secrecy must always be kept to an absolute minimum. This should
include a requirement that government officials pay specific attention to the five
key characteristics of secret law.261 It should also require that decisions to keep
law secret meet a higher standard of justification than the ordinary standard
required to classify mere facts.262 Third, the legal standards that govern secret
law should themselves be established in public by statute and should be
enforceable by the courts. Just as FOIA empowers the courts to adjudicate
compliance with laws restricting secrecy, the courts should be able to adjudicate
whether the Executive Branch is complying with strict and public limits on
secret law. In what follows, I briefly elaborate on each of these principles.

1. No Secrets About the Scope of Secret Law

The first principle for reform is that the public should know the true scope of
the practice of secret law. Where the public is in the dark about the existence of
secret law, concerns about democratic legitimacy, check and balances, and
individual liberty are at their zenith. Moreover, if a secret law is unknown to the
public, then even the weak checks that currently exist cannot be set in motion.
Individuals cannot file FOIA lawsuits seeking judicial review. The public cannot
engage its representatives in Congress to press for more transparency. Where
the existence of the law is secret, it is essentially immune from democratic

259. See Margaret Kwoka, Leaking and Legitimacy, 48 U.C. DAVIS L. REV. 1387, 1455–56 (2015)
(reforming national security secrecy laws to permit more disclosure of information through formal
means may reduce incentives to leak and could result in a better equilibrium between national security
and government transparency); Pozen, supra note 169, at 581–82 (“Surely we would have less leaking
of classified information if we had less classified information. Not only would there be fewer
documents to pilfer, but people might treat the secrecy rules with more respect.”).
260. Accord Rudesill, supra note 18, at 344; GOITEIN, supra note 18, at 68–69.
261. See supra Part III.
262. Accord GOITEIN, supra note 18, at 64–65.
2018] SECRET LAW 859

oversight.263
It is perhaps no surprise that multiple commentators have endorsed this same
principle. Dakota Rudesill, writing about the problem of secret legislation
enacted by Congress, has proposed that there should be public notices—or “bell
ringers”—every time such a law is enacted.264 Elizabeth Goitein of the Brennan
Center for Justice made a similar proposal with respect to all varieties of secret
law.265 I add my voice to that growing consensus.

2. Minimizing the Tension Between Secrecy and Transparency

Decisions to keep law secret implicate fundamental values about democratic
decision making, self-governance, and individual liberty. Achieving an accept­
able accommodation between these values and countervailing considerations
favoring secrecy require that secrecy be limited to circumstances where it is
strictly necessary and amply justified.
The five distinctions among secret law described in Part III offer a systematic
way to think about minimizing the conflict between competing values favoring
disclosure and secrecy. As discussed there, secret laws vary along a continuum
with respect to the extent of their external effects, their unforeseeability and
novelty, the level of granularity at which they are publicly disclosed, how
tightly held the secret is kept (“depth”), and the expected duration of secrecy.266
As a rule of thumb, secret laws will be most problematic from the perspective of
transparency values when they fall toward one end of each continuum. There­
fore, requiring government officials to move secret laws as far as possible
toward the less problematic end of these axes will minimize the tension between
secrecy and transparency.
In many cases it will be possible to shift a secret law along one or more axes
to decrease the extent to which the law harms transparency values while
incurring few, if any, marginal costs to national security. In any given case, it
may be possible to (1) increase the level of granularity at which the law is
disclosed, (2) avoid novel or unforeseen interpretations of law and instead
conform secret law to settled public expectations,267 (3) build in limits on the
duration of secrecy, and (4) decrease the depth of a secret by disclosing the
secret law, at a minimum, to coordinate branches of government. To keep law
secret, Executive Branch officials should be legally required to be attentive to
each of these characteristics and also take into account the extent of the external
effects that a secret law has on the public.
In addition, decisions to keep the law secret should have to meet a higher
burden of justification than ordinary secrecy determinations. The existing rules

263. See supra Section II.A.2.

264. Rudesill, supra note 18, at 344.
265. GOITEIN, supra note 18, at 68–69.
266. See supra Part III.
267. Cf. Kerr, supra note 18, at 1514 (arguing ambiguity in statutes authorizing national security
surveillance should be interpreted narrowly in favor of the individual and against the state).
860 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

governing classification impose a strikingly low bar: information can be classi­

fied whenever “unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security.”268 This standard effec­
tively requires officials to identify the mere possibility of damage to national
security, with no requirement to determine that such damage is actually likely to
come about or to consider any countervailing public interest in disclosure.
When it comes to keeping law secret, the burden should be higher.269
A brief example from the context of surveillance law will illustrate how these
strategies for limiting secret law can be profitably deployed in practice. The
Snowden revelations about the scope of government surveillance authorized by
the Foreign Intelligence Surveillance Court provoked at least three significant
government responses that ratcheted down the tension over secret law.
First, the government began proactively disclosing a significant number of
FISA court decisions.270 To be sure, the government has redacted these
opinions—sometimes heavily—often in an apparent effort to omit specific
factual and operational details.271 But by releasing even redacted opinions, the
government has effectively increased the granularity at which (previously)
secret law is disclosed.
Second, Congress enacted the USA FREEDOM Act, which contains provi­
sions that specifically limit the depth, duration, and granularity of secret law.272
In particular, the law now requires the government to conduct a declassification
review of each FISC opinion that contains a “significant construction or interpre­

268. Exec. Order. No. 13,526 § 1.1(a)(4), 75 Fed. Reg. 707 (Dec. 29, 2009) (emphasis added). In
addition to this minimal showing of risk, three additional requirements must be met to classify
information: an “original classification authority” must be the one to classify; the information must be
“owned by, produced by or for, or [be] under the control of the United States Government;” and “the
information [must] fall[] within one or more of the categories of” classifiable subject matter. Id.
§ 1.1(a)(1)–(3).
269. One concrete option is to borrow the stringent standard that governs secrecy in the Judicial
Branch and other contexts in which the First Amendment right of access applies. In those circum­
stances, secrecy is permitted only to serve an “overriding interest based on findings that closure is
essential to preserve higher values.” Dhiab v. Obama, 70 F. Supp. 3d 486, 493 (D.D.C. 2014) (quoting
Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 510 (1984)). More to the point, the “party seeking
closure must show a ‘substantial probability’ of harm to an ‘overriding interest,’”—more than merely a
“‘reasonable likelihood’ of harm,” as with ordinary classification rules. See id. (quoting Press-Enter.
Co., 478 U.S. at 13–15). In addition, “any limit on public access . . . must be ‘narrowly tailored to serve
that interest,’” id. (quoting Press Enter., 464 U.S. at 510), and it must be effective in protecting the
threatened interest. Press Enter., 478 U.S. at 14.
270. See, e.g., James R. Clapper, Dir. of Nat’l Intelligence, Testimony at Open Hearing on Foreign
Intelligence Surveillance Authorities, U.S. S. Select Comm. on Intelligence (Sept. 26, 2013), https://
icontherecord.tumblr.com/post/62344881129/remarks-as-prepared-for-delivery-by-director-of [https://
perma.cc/T7KA-WFBW] (“Over the past three months, I’ve declassified and publicly released a series
of documents related to both Section 215 of the PATRIOT Act and Section 702 of the Foreign
Intelligence Surveillance Act. I did that to facilitate informed public debate about the important
intelligence collection programs that operate under these authorities.”).
271. See generally Letter from Hon. Reggie B. Walton, Presiding Judge, U.S. Foreign Intelligence
Surveillance Court to Sen. Dianne Feinstein (Mar. 27, 2013), https://fas.org/irp/agency/doj/fisa/fisc­
032713.pdf [https://perma.cc/YTA5-XSS7].
272. See USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015).
2018] SECRET LAW 861

tation of any provision of law.”273 It requires the government to disclose such

opinions “to the greatest extent practicable,” in redacted form if necessary.274
The government can avoid declassifying FISC decisions only if it determines
that doing so is “necessary to protect . . . national security . . . or properly classi­
fied intelligence sources or methods,”275 but in that case the law still requires
the government to disclose “an unclassified statement . . . summarizing the
significant construction or interpretation of any provision of law.”276 In addition
to mandatory declassification, the USA FREEDOM Act also provides for
outside, non-governmental lawyers to participate in FISC proceeding as amici
curiae in important cases.277 The law gives the amicus access to any secret legal
precedents or other materials relevant to the proceeding.278
These provisions of the Act ratchet down the tension between secrecy and
transparency along several of the axes I have identified. The law effectively
requires the government to make any unforeseeable interpretations of law
public. It implements a requirement to maximize the granularity of disclosure. It
effectively limits the duration of secrecy by imposing an affirmative obligation
on the government to disclose. And it reduces the depth of secrecy by allowing
access to an outside amicus.
A third post-Snowden reform further illustrates how the extent of secrecy can
be modulated. Reversing its prior practice, the government now notifies defen­
dants when FISC-authorized surveillance has been used to develop evidence in
the case.279 This policy change effectively decreases the depth of secrecy
around FISC decisions by bringing criminal defendants and ordinary Article III
courts into the loop.
This is but one example of how concerns about secret law may be ratcheted
down by modulating disclosure along each characteristic. Although the particu­
lar methods of increasing disclosure may vary from case to case, the objective
remains the same: to minimize the conflict between transparency values and
secrecy concerns.

273. 50 U.S.C. § 1872(a) (2015).

274. See id. § 1872(b).
275. See id. § 1872(c)(1).
276. See id. § 1872(c)(2).
277. See id. § 1803(i).
278. See id. § 1803(i)(6)(A)(i).
279. See Stephen I. Vladeck, The FISA Court and Article III, 72 WASH. & LEE L. REV. 1161, 1170–71
(2015); Jameel Jaffer & Patrick C. Toomey, The Solicitor General Should Correct the Record in
Clapper, JUST SECURITY (Oct. 18, 2013, 1:30 PM), http://justsecurity.org/2219/solicitor-general-correct­
record-clapper [https://perma.cc/TQ8D-VPVS]; Charlie Savage, Door May Open for Challenge to
Secret Wiretaps, N.Y. TIMES (Oct. 16, 2013), http://www.nytimes.com/2013/10/17/us/politics/us-legal­
shift-may-open-door-for-challenge-to-secret-wiretaps.html?mcubz=3 [https://nyti.ms/2tZDU3H].
862 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

3. Governing Secret Law According to Public Rules Democratically Adopted

and Judicially Enforced
Of course, it may not be possible to modulate the characteristics of a given
secret law in a way that fully reconciles interests in transparency and secrecy.280
There can be genuine impasses between secrecy and transparency. The question
is how the legal system should resolve such stalemates. How, as an institutional
matter, should we decide whether the law stays secret?
I propose two institutional reform principles in response. First, both Congress
and the Executive should be required to agree about when secret law is
appropriate. At a minimum, the rules governing secret law should themselves be
debated and established in public through the ordinary legislative process.
Second, these rules limiting secret law should be subject to independent judicial
enforcement. The basic intuition here is that if we are to have secret law at all,
then the scope and limits of secret law must be established in the most
democratically respectable way we know: via the ordinary, public legislative
process, subject to public and independent oversight through the courts.
Congressional action to rein in secret law could of course take multiple
forms. Congress could, for example, require the government to disclose all
secret laws unless it obtains specific, case-by-case legislative authorization.281
More practicably, Congress could amend existing transparency laws—notably,
FOIA—to tighten the legal framework governing the practice of secret law. I
elaborate the latter option here.
Such amendments would affirm that the automatic disclosure provisions of
FOIA apply to all types of legal texts that officials regard as binding as a matter
of practice. This would reverse the trend in recent jurisprudence toward finding
that authoritative legal opinions, like those of the OLC, do not constitute agency
law.282
The amendments would further specify heightened procedural and substan­
tive requirements for withholding agency law. Congress could clarify that
ordinary national security and law enforcement exemptions cannot be used to
withhold internal rules and other agency laws—just as the courts have long
recognized that the ordinary Exemption 5 protection for deliberative process

280. See Kris, supra note 137, at 275–76 (explaining government sought for years to find ways to
disclose FISC opinions without compromising the underlying programs but was unable to do so).
281. A case-by-case approach could be enacted by imposing a strict time limit on how long laws
may be kept secret without specific congressional authorization. Congress could, for example, require
the Executive to provide an annual report listing secret legal opinions, rules, and other legally binding
instruments, and further require that all such texts be published within twelve months unless Congress
endorses continued secrecy through subsequent legislation. This kind of statute would effectively
impose a uniform sunset provision on all secret laws, making transparency the default rule. Of course,
such a law would impose a significant decisional burden on Congress and, in any case, sunset
provisions in national security legislation have not turned out to be particularly effective checks on the
Executive. See generally Berman, supra note 157 (discussing the effectiveness of sunset rules in the
national security context).
282. See supra notes 244–47.
2018] SECRET LAW 863

and attorney–client communications do not apply to agency law.283

In place of those exemptions, Congress could craft a new framework govern­
ing internal law. Consistent with the principles already articulated above, this
framework would require that agencies meet a higher burden of justification to
withhold legal texts.284 The framework could also require agencies to make a
series of specific certifications explaining whether they had considered all
means of reducing the degree of secrecy and why no further disclosure was
possible. These certifications could specifically track the five key characteristics
of problematic secret laws identified in this Article. Thus, Congress could
affirmatively require the agency to explain and justify whether it has disclosed a
given secret law in as much granular detail as possible, whether it has withheld
secret laws containing unforeseeable content or that have significant external
effects, and whether it has set strict limits on the duration of secrecy—perhaps
with a requirement to recertify the need for secrecy on a regular basis. Congress
could also require the agency to consider explicitly whether the specific reasons
for secrecy outweigh the public interest in disclosure and the transparency
values that militate against secrecy.
Equally important, such a reform would enhance the role of the courts by
vesting them with authority to review the sufficiency of Executive Branch
certifications, explanations, and justifications with respect to each of these
requirements.285 A reform law could also vest the courts with the power to order
the government to create and disclose public summaries of internal law—a
power that the courts do not currently have under FOIA—so as to enforce a
maximum disclosure obligation.286
This arrangement would build on the enduring structure that FOIA has
created to govern executive secrecy in general, replicating it with respect to
secret law in particular. FOIA abolished a system of unilateral executive discre­
tion, establishing in its place a system that dispersed authority over government
secrets.287 Under FOIA, Congress sets the boundaries between public informa­
tion and legitimate secrets by enumerating nine exemptions.288 The courts
police that boundary by engaging in de novo review and ordering disclosure of

283. See supra notes 231–34.

284. See supra note 269 (proposing a standard borrowed from the First Amendment right of access).
285. Of course, the courts have often been inclined to defer when faced with government officials
strenuously arguing that disclosure would cause harm to important national interests. See generally
HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA
AFFAIR (1990) (examining the shifting and often deferential posture of the courts toward the Executive
on national security matters). But the proposal offered here would mitigate this tendency by requiring
greater internal deliberation within the Executive Branch and by requiring courts not to engage in a
general assessment of the risks to national security and instead to assess whether the government has
adequately proven that no further steps can be taken to increase transparency.
286. Cf. 50 U.S.C. § 1872(a) (2012) (requiring the Director of National Intelligence to prepare
unclassified summaries of FISC opinions).
287. See supra notes 215–16, 226–29 and accompanying text.
288. See 5 U.S.C. § 552(b) (2012).
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material improperly withheld.289 The public can press this system of checks and
balances into action simply by filing suit seeking disclosure. The genius of
FOIA was to split the atom of executive secrecy among all three branches and
the public.290 The framework statute I have proposed is meant to have the same
effect with respect to secret law.
Just as FOIA wrested control from the Executive Branch over government
secrecy in general, a strong framework statute for secret law is meant to replace
a system of executive discretion with one governed by stringent criteria estab­
lished by Congress and enforceable by the courts and public. The hope is that
by cabining executive discretion, such reforms would shift the legal equilibrium
to a position that better respects the transparency values that militate against
secrecy.

B. FORCING PUBLIC DELIBERATION OVER SECRET LAW: A ROLE FOR THE COURTS

The idea that Congress would take up, on its own initiative, something like
the framework statute I have envisioned here may seem fantastical. Congress
has acquiesced in the practice of secret law for the past fifteen years.291 In that
time, it has legislated limits on secret law only once by requiring the disclosure
of redacted FISA court opinions.292 And that reform was made only as a result
of the fallout of the most spectacular and consequential leak of the last forty
years. What could motivate Congress to upend the status quo?
I end this Article by proposing a doctrinal innovation that would both limit
the practice of secret law and force more robust congressional participation in
the ecosystem regulating secret law: the courts should adopt a constitutional
presumption against secret law. Specifically, the courts should adopt a canon of
statutory interpretation that statutes will not be read to permit secret law unless
Congress has clearly and affirmatively said otherwise.293 Under this kind of
clear statement rule, statutes that otherwise permit the government to withhold
information would not suffice to authorize it to withhold law. Most notably, the
Executive Branch could no longer keep legal texts secret on the basis of

289. 5 U.S.C. § 552(a)(4)(B).

290. See U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (“[FOIA is] broadly con­
ceived . . . to permit access to official information long shielded unnecessarily from public view[,] and
[it] attempts to create a judicially enforceable public right to secure such information from possibly
unwilling official hands.” (quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973))).
291. See supra notes 203–06 and accompanying text.
292. See 50 U.S.C. § 1872(a) (2012). In addition, Congress passed legislation in 2010 requiring the
Executive Branch to share the legal basis of intelligence activities, including covert action, with
Congress. See Intelligence Authorization Act for Fiscal Year 2010, Pub. L. No. 111-259 § 331, 124 Stat.
2654, 2685 (2010) (codified at 50 U.S.C. §§ 3092(a)(2), 3093(b)(2)); Rudesill, supra note 18, at
298–300. That legislation, however, did not require any public disclosure. The law instead sought to
make certain pockets of secret law a “shallower” secret. See supra notes 159–62 and accompanying
text.
293. See generally William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear
Statement Rules As Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992) (discussing clear statement
rules).
2018] SECRET LAW 865

ordinary FOIA exemptions for national security and law enforcement informa­
tion. Instead, the government would need to obtain specific congressional
approval to keep law secret, for example, by enacting and following a frame­
work statute governing secret law along the lines proposed above.294

1. A Constitutional Clear Statement Rule Against Secret Law as a

Democracy-Forcing Mechanism
A clear statement rule against secret law would serve the purpose of forcing
Congress to deliberate about and determine the lawful parameters of secret law.
At the same time, adopting a clear statement rule would not require the courts to
make a final decision about whether a secret law stays secret or even to
second-guess the government’s predictions of harm to national security.295
Instead, a court that adopts a clear statement rule would simply be forcing a
more robustly democratic decision about whether and when law should be kept
secret.296 Indeed, a constitutional presumption against secret law casts the
courts in a familiar role as guardians of the separation of powers, promoting
checks and balances between the political branches. Indeed, this “democracy­
forcing” role is one that U.S. courts have repeatedly taken in post-9/11 national
security disputes.297
This solution also has the important consequence of shifting the burden of
inaction onto the government. Currently, if Congress does nothing, secrecy
prevails. A clear statement rule flips the presumption: if Congress does nothing,
transparency prevails. This is a healthier scheme because it puts the onus on the
Executive Branch to persuade Congress that secrecy is necessary, rather than
putting the onus on transparency advocates outside government (who are at a
severe informational and institutional disadvantage) to persuade Congress to act
in favor of transparency.
In addition, a clear statement rule would force a public decision on whether
secret law is appropriate. Currently, the public can potentially be kept in the
dark about the decision to keep law secret and the reasons motivating such
decisions. Sometimes the public will be unaware that the secret law exists in the
first place. By requiring Congress to specifically authorize secret law, the public

294. This stands in contrast to previous case law, in which the court has observed that “there is no
textual basis in FOIA for a freestanding ‘secret law doctrine.’” N.Y. Times Co. v. U.S. Dep’t of Justice,
872 F. Supp. 2d 309, 317 (S.D.N.Y. 2012). Had the court applied a presumption against secret law, the
inquiry would not have been whether FOIA specifically removes secret law from the government’s
power to withhold records, but rather whether the law specifically grants the government power to
withhold law.
295. See supra notes 240–47, 253 and accompanying text (discussing courts’ reluctance to order
disclosure of information over the national security objections of government).
296. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL
INTERPRETATION 132–35 (2006) (explaining that clear statement rules are a form of democracy-forcing
statutory interpretation); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000)
(arguing clear statement rules amount to nondelegation rules forbidding the Executive from taking
certain actions on its own).
297. See Benson, supra note 22; Sunstein, supra note 22; Balkin, supra note 22.
866 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

will be on notice of what may be kept secret and will at least be able to
participate in the second-order decision—through the ordinary legislative
process—about whether and when to permit law to be kept secret.
There are objections to this proposal. Clear statement rules have come under
criticism as an inappropriate exercise of judicial power.298 Even if a court did
adopt a clear statement rule against secret law in a particular case and ordered
disclosure on that basis, Congress could simply respond by endorsing secrecy in
that particular instance—rather than enacting a broader framework limiting
secret law.299 Moreover, Congress’s involvement may not ensure that the line
between secrecy and disclosure will be drawn in an appropriate place. To the
contrary, Congress could decide to explicitly delegate broad secret lawmaking
authority, only further entrenching the problematic practice. But requiring the
entire legislative apparatus of government to decide when we will be governed
by secret laws seems the best way to make such decisions in a democracy. The
courts are in a unique position to force this kind of healthy democratic
deliberation.

2. Toward a Constitutional Clear Statement Rule Against Secret Law

I conclude by briefly sketching the outlines of a legal argument in favor of
recognizing the clear statement rule that I have proposed as a means of
beginning to answer the problem of secret law. Courts typically recognize clear
statement rules either to protect constitutional norms—often structural features
of the Constitution such as federalism or state and tribal sovereignty—or to
advance perceived public policy goals.300 A clear statement rule against secret
law can be justified on both of these grounds. I hope by now to have made the
policy argument against secret law301 and in favor of requiring Congress to
speak clearly on the question.302 But I have not yet touched on the constitu­
tional implications of secret law.
Although there is not space in this Article to fully explore the constitutional
question, I nevertheless offer here a preliminary sketch of the various constitu­
tional provisions and doctrines that might be brought to bear in support of a
constitutional presumption against secret law. For present purposes, I hope

298. See John F. Manning, Clear Statement Rules and the Constitution, 110 COLUM. L. REV. 399, 404
(2010) (arguing the Constitution should not be read to include general constitutional values enforceable
through clear statement rules, and instead constitutional values only “find concrete expression in many
discrete constitutional provisions, which prescribe the means of implementing the value in question”).
299. Cf. Am. Civil Liberties Union v. U.S. Dep’t of Def., 40 F. Supp. 3d 377, 380–82 (S.D.N.Y.
2014) (recounting Congress’s enactment of a law specifically empowering the Secretary of Defense to
withhold images of detainees being abused, in response to a judicial decision ordering those images
disclosed).
300. See Sunstein, supra note 296, at 330–37 (“[N]ondelegation canons fall in three principal
categories. Some are inspired by the Constitution; others involve issues of sovereignty; still others have
their foundations in public policy.”); Eskridge & Frickey, supra note 293, at 596–97.
301. See supra Parts II–III.
302. See supra Section V.B.1.
2018] SECRET LAW 867

merely to draw the contours within which such an argument might be con­
structed. A more sustained examination of the constitutional limits on secret law
is a project for another day.
Although there is no single provision of the Constitution forbidding secret
law, there are a number of features of the Constitution’s text and structure that,
taken together, strongly suggest a constitutional presumption that law will be
public.303
The most obvious of such provisions are the Presentment Clause and the
Journal Clause. The latter, which requires each house of Congress to keep a
“Journal of its Proceedings,” contains an explicit presumption in favor of
openness: “Each House shall . . . from time to time publish [its Journal], except­
ing such Parts as may in their Judgment require Secrecy.”304 Accordingly, the
Constitution presumes that when each house passes bills and takes other actions
it will do so in public, unless it specifically decides to do so in secret. The
Presentment Clause, in turn, requires bills enacted by both houses to “be
presented to the President of the United States; [i]f he approve he shall sign it,
but if not he shall return it.”305 Although the Presentment Clause does not
contain any explicit transparency provisions, it refers back to the Journal
Clause, with its explicit presumption of openness.306 Taken together, the two
clauses strongly suggest that the Constitution envisions lawmaking as a presump­
tively public process.
Additional constitutional support for a presumption against secret law may be
found in the First Amendment’s guarantees of the rights to freedom of speech,
freedom of the press, freedom of assembly, and the right to petition. It is
commonly understood that, among other purposes, these protections of the First
Amendment are a “method of securing participation by the members of the
society in social, including political, decision making.”307 But if the public is
kept in the dark about the very law that governs, public participation in political
decision making will be severely constrained.
Similar considerations led the Supreme Court to recognize in the First
Amendment a qualified right of access to courts and other official proceedings
and records.308 In particular, the Court has held that where there is a tradition of

303. This discussion draws upon the work of Heidi Kitrosser, David Pozen, Mark Rozell, and Adam
Samaha, each of whom has discussed the constitutional status of secrecy in various contexts. See
ROZELL, supra note 21, at 8–11, 20–29, 44–49; Kitrosser, supra note 21, at 514–15; Pozen, supra note
21, at 292–323; Samaha, supra note 21, at 941–76.
304. U.S. CONST. art. I, § 5, cl. 3.
305. U.S. CONST. art. I, § 7, cl. 2.
306. See id. (requiring the objections of the President exercising a veto to be entered on the Journal
of the house where the bill originated, and requiring the votes for and against an override of the veto to
be “entered on the Journal of each House respectively”).
307. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 878
(1963).
308. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980) (“People in an
open society do not demand infallibility from their institutions, but it is difficult for them to accept what
they are prohibited from observing.”).
868 THE GEORGETOWN LAW JOURNAL [Vol. 106:803

openness to a particular proceeding, and where public access to the proceeding

“plays a significant positive role in the functioning of the particular process in
question,” the First Amendment guarantees a qualified constitutional right of
access to the public.309 These same rationales strongly support a constitutional
right—or at least a constitutional presumption—of public access to secret
law.310
Moreover, the Petition Clause of the First Amendment may provide indepen­
dent grounds for a presumption against secret law.311 As Gregory Mark has
recounted, the history of the right to petition in colonial America is a history of
public participation in lawmaking: for early Americans, presenting a petition
was the principal means of prompting legislative solutions to problems, seeking
redress for wrongs, and otherwise participating in the legal governance of
society.312 The Petition Clause may therefore be understood to protect the
public’s right to participate directly in lawmaking, a right that is significantly
impeded when the law itself is hidden from the public.
Other features of the Constitution also support at least a presumption against
secret law. For instance, the Constitution’s provisions for electing Representa­
tives, Senators, and the President suggest a presumption that the public knows
what the law is. After all, public election of members of Congress to legislate
would hardly be meaningful if the public could not know what laws have been
enacted.313 The vesting clauses, too, suggest a presumption of openness, insofar
as publicness is inherent in the exercise of the power to make law.314
More broadly, the structure of the Constitution supports the broader principle
that lawmaking is different from other kinds of governmental activity and that
when the government withholds law from the public, it raises concerns that go
well beyond those normally implicated by public access to government records.
The Constitution is deeply concerned with lawmaking as a function of govern­
ment, specifying in great detail the manner in which the government can make
law, circumscribing the power of the government to do so, apportioning this

309. Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8–9 (1986).

310. Courts have recognized that the right of access is particularly crucial with respect to judicial
opinions, precisely because they set out governing law. See Lowenschuss v. W. Pub. Co., 542 F.2d 180,
185 (3d Cir. 1976) (“As ours is a common-law system based on the ‘directive force’ of precedents, its
effective and efficient functioning demands wide dissemination of judicial decisions . . . . Even that part
of the law which consists of codified statutes is incomplete without the accompanying body of judicial
decisions construing the statutes. Accordingly, under our system of jurisprudence the judiciary has the
duty of publishing and disseminating its decisions.”).
311. See U.S. CONST. amend. I.
312. See Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to
Petition, 66 FORDHAM L. REV. 2153, 2157, 2178–87 (1998).
313. David Pozen has made this point with respect to the constitutional status of secrecy in general,
explaining “[f]or federal elections to be meaningful . . . the people must be aware of what their
officeholders have been doing.” Pozen, supra note 21, at 295–96.
314. Cf. Patrick Hayden, Access as an Article III Value: The Foreign Intelligence Surveillance Court
and the Public 49–80 (Apr. 18, 2014) (unpublished manuscript) (on file with author) (arguing that the
“judicial power” vested by Article III implies a judicial obligation to disclose binding precedent).
2018] SECRET LAW 869

power among the federal and state governments, delegating to the Executive
Branch the power to execute the laws, and otherwise regulating the lawmaking
authority of government. To the extent that the Constitution can be read to
contain some implicit restrictions on secrecy,315 they must be strongest with
respect to the law itself.

CONCLUSION
Secret law has become a regular feature of governance in this country,
particularly with respect to national security and law enforcement activities of
government. The practice is deeply problematic from a number of perspectives.
This Article attempts to clarify what is at stake in disputes over secret law to
more rigorously assess the harms of secret law and to suggest how tensions
between transparency and secrecy might be mitigated. Ultimately, however, to
reconcile the basic tension between secret law and elementary constitutional
commitments, it will be necessary to bring the practice out of the shadows and
to require every branch of government—and the public, too—to participate in
decisions over its proper place.

315. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576–80 (1980) (holding First
Amendment limits secrecy where there is a longstanding history of openness); id. at 589 (Brennan, J.,
concurring) (explaining First Amendment limits secrecy where openness in a particular governmental
process serves that process itself); Pozen, supra note 21, at 292–323 (arguing the Constitution forbids,
at a minimum, “deep secrecy”—that is, it prohibits one branch of government from taking actions that
no other branch of government is permitted to know exist); Samaha, supra note 21, at 963–68 (arguing
courts could build on existing statutory structures, including FOIA, to enforce constitutionally grounded
expansion or contraction of access rights based on the Constitution’s structural logic and its commit­
ment to democratic popular accountability).