We've Gone from a Nation of Laws to a Nation of Powerful Men Making Laws in Secret

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Preface: Some defendants are no longer allowed to see the "secret evidence" which the government is using against them. See this and this.

The U.S. Supreme Court has ruled that judges can throw out cases because they don't like or believe the plaintiff ... even before anyone has had the chance to conduct discovery to prove their case.
In other words, judges' secret biases can be the basis for denying
people their day in court, without even having to examine the facts.
Judges are also becoming directly involved in politics with the other branches of government.

Claims of national security are being used to keep the shenanigans of the biggest banks an corporations secret, and to crush dissent.

But this essay focuses on something else: the fact that the laws themselves are now being kept secret.

America is supposed to be a nation of laws which apply to everyone equally, regardless of wealth or power.

Founded on the Constitution and based upon the separation of powers, we escaped from the British monarchy - a "nation of men" where the law is whatever the king says it is.

However,
many laws are now "secret" - known only to a handful of people, and
oftentimes hidden even from the part of our government which is supposed
to make laws in the first place: Congress.

The Patriot Act

Congress just re-authorized the Patriot Act for another 3 years.

However,
Senator Wyden notes that the government is using a secret
interpretation of the Patriot Act different from what Congress and the
public believe. Senator Wyden's press release of today states:

Speaking
on the floor of the U.S Senate during the truncated debate on the
reauthorization of the PATRIOT ACT for another four years, U.S. Senator
Ron Wyden (D-Ore.) – a member of the Senate Select Committee on
Intelligence -- warned his colleagues that a vote to extend the bill
without amendments that would ban any Administration’s ability to keep
internal interpretations of the Patriot Act classified will eventually
cause public outrage.

 

Known as Secret Law, the official
interpretation of the Patriot Act could dramatically differ from what
the public believes the law allows. This could create severe violations
of the Constitutional and Civil Rights of American Citizens.

 

***

 

I
have served on the Senate Intelligence Committee for ten years, and I
don’t take a backseat to anybody when it comes to the importance of
protecting genuinely sensitive sources and collection methods. But the
law itself should never be secret – voters have a need and a right to
know what the law says, and what their government thinks the text of the law means,
so that they can decide whether the law is appropriately written and
ratify or reject decisions that their elected officials make on their
behalf.

As TechDirt points out:

 

It's not just the public that's having the wool pulled over their eyes. Wyden and [Senator] Udall are pointing out that the very members of Congress, who are voting to extend these provisions, do not know how the feds are interpreting them:

As
members of the Senate Intelligence Committee we have been provided
with the executive branch's classified interpretation of those
provisions and can tell you that we believe there is a significant
discrepancy between what most people - including many Members of
Congress - think the Patriot Act allows the government to do and what
government officials secretly believe the Patriot Act allows them to do.

***

By far the most important interpretation of what
the law means is the official interpretation used by the U.S.
government and this interpretation is - stunningly -classified.

What
does this mean? It means that Congress and the public are prevented
from having an informed, open debate on the Patriot Act because the
official meaning of the law itself is secret. Most
members of Congress have not even seen the secret legal
interpretations that the executive branch is currently relying on and
do not have any staff who are cleared to read them.
Even if
these members come down to the Intelligence Committee and read these
interpretations themselves, they cannot openly debate them on the floor
without violating classification rules.

Here's Wyden's speech on the Senate floor.

The Surveillance State and Unauthorized Wars

Former constitutional lawyer Glenn Greenwald noted last week:

The
government's increased ability to learn more and more about the
private activities of its citizens is accompanied -- as always -- by an
ever-increasing wall of secrecy it erects around its own actions.
Thus, on the very same day that we have an extension of the Patriot Act
and a proposal to increase the government's Internet snooping powers, we have this:

 

The
Justice Department should publicly release its legal opinion that
allows the FBI to obtain telephone records of international calls made
from the U.S. without any formal legal process, a watchdog group
asserts.

 

***

 

The decision not to release the memo is noteworthy... By turning down the foundation's request for a copy,
the department is ensuring that its legal arguments in support of the
FBI's controversial and discredited efforts to obtain telephone records
will be kept secret.

What's
extraordinary about the Obama DOJ's refusal to release this document is
that it does not reveal the eavesdropping activities of the Government
but only its legal rationale for why it is ostensibly
permitted to engage in those activities. The Bush DOJ's refusal to
release its legal memos authorizing its surveillance and torture
policies was unquestionably one of the acts that provoked the greatest
outrage among Democratic lawyers and transparency advocates (see, for
instance, Dawn Johnsen's scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: "reliance on 'secret law' threatens the effective functioning of American democracy"
and "the withholding from Congress and the public of legal
interpretations by the Justice Department Office of Legal Counsel (OLC)
upsets the system of checks and balances between the executive and
legislative branches of government."

 

The way a
republic is supposed to function is that there is transparency for
those who wield public power and privacy for private citizens. The
National Security State has reversed that dynamic completely, so that
the Government (comprised of the consortium of public agencies and
their private-sector "partners") knows virtually everything about what
citizens do, but citizens know virtually nothing about what they do
(which is why WikiLeaks specifically and whistleblowers generally, as
one of the very few remaining instruments for subverting that wall of
secrecy, are so threatening to them). Fortified by always-growing
secrecy weapons, everything they do is secret -- including even the "laws" they secretly invent to authorize their actions -- while everything you do is open to inspection, surveillance and monitoring.

 

This
dynamic threatens to entrench irreversible, absolute power for reasons
that aren't difficult to understand. Knowledge is power, as the
cliché teaches. When powerful factions can gather unlimited
information about citizens, they can threaten, punish, and ultimately
deter any meaningful form of dissent ...

 

Conversely, allowing government officials to shield their own conduct from transparency and (with the radical Bush/Obama version of the "State Secrets privilege")
even judicial review ensures that National Security State officials
(public and private) can do whatever they want without any detection and
(therefore) without limit or accountability. That is what the
Surveillance State, at its core, is designed to achieve: the destruction
of privacy for individual citizens and an impenetrable wall of secrecy
for those with unlimited surveillance power. And as these three
events just from the last 24 hours demonstrate, this system -- with
fully bipartisan support --- is expanding more rapidly than ever.

 

***

 

So patently illegal is Obama's war in Libya as of today that media reports are now coming quite close to saying so directly; see, for instance, this unusually clear CNN article today from Dana Bash.
As a result, reporters today bombarded the White House with questions
about the war's legality, and here is what happened, as reported by ABC News' Jake Tapper:

 

 

 

Talk
about "secret law." You're not even allowed to know the White House's
rationale (if it exists) for why this war is legal.
It simply
decrees that it is, and you'll have to comfort yourself with that.
That's how confident they are in their power to operate behind their
wall of secrecy: they don't even bother any longer with a pretense of
the most minimal transparency.

Secret Memos

Secret laws are not a brand new problem.

As I've previously noted:

Scott Horton - a professor at Columbia Law School and writer for Harper's - says
of the Bush administration memos authorizing torture, spying,
indefinite detention without charge, the use of the military within the
U.S. and the suspension of free speech and press rights:

We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.

Yale law professor Jack Balkin agrees, writing that the memos promoted "reasoning which sought, in secret, to justify a theory of Presidential dictatorship." Constitutional law professor Jonathan Turley says that the memos are the "very definition of tyranny". And former White House counsel John Dean says "Reading these memos, you've gotta almost conclude we had an unconstitutional dictator."

State of Emergency Cuts the Constitutional Government Out of the Picture

As I wrote in February:

The United States has been in a declared state of emergency
from September 2001, to the present. Specifically, on September 11,
2001, the government declared a state of emergency. That declared
state of emergency was formally put in writing on 9/14/2001:

A
national emergency exists by reason of the terrorist attacks at the
World Trade Center, New York, New York, and the Pentagon, and the
continuing and immediate threat of further attacks on the United States.

NOW,
THEREFORE, I, GEORGE W. BUSH, President of the United States of
America, by virtue of the authority vested in me as President by the
Constitution and the laws of the United States, I hereby declare that
the national emergency has existed since September 11, 2001 . . . .

That
declared state of emergency has continued in full force and effect
from 9/11 to the present. President Bush kept it in place, and
President Obama has also.

***

On September 10, 2010, President Obama declared:

Section
202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), provides
for the automatic termination of a national emergency unless, prior to
the anniversary date of its declaration, the President publishes in
the Federal Register and transmits to the Congress a notice stating
that the emergency is to continue in effect beyond the anniversary
date. Consistent with this provision, I have sent to the Federal
Register the enclosed notice, stating that the emergency declared with
respect to the terrorist attacks on the United States of September
11, 2001, is to continue in effect for an additional year.

 

The
terrorist threat that led to the declaration on September 14, 2001, of
a national emergency continues. For this reason, I have determined
that it is necessary to continue in effect after September 14, 2010,
the national emergency with respect to the terrorist threat.

The Washington Times wrote on September 18, 2001:

Simply
by proclaiming a national emergency on Friday, President Bush
activated some 500 dormant legal provisions, including those allowing
him to impose censorship and martial law.

***

Continuity of Government ("COG") measures were implemented on 9/11. For example, according to the 9/11 Commission Report, at page 38:

At
9:59, an Air Force lieutenant colonel working in the White House
Military Office joined the conference and stated he had just talked to
Deputy National Security Advisor Stephen Hadley. The White House requested (1) the implementation of continuity of government measures, (2) fighter escorts for Air Force One, and (3) a fighter combat air patrol over Washington, D.C.

***

The Washington Post reported in March 2002 that "the shadow government has evolved into an indefinite precaution." The same article goes on to state:

Assessment of terrorist risks persuaded the White House to remake the program as a permanent feature of 'the new reality, based on what the threat looks like,' a senior decisionmaker said.

As CBS pointed out,
virtually none of the Congressional leadership knew that the COG had
been implemented or was still in existence as of March 2002:

Key
congressional leaders say they didn’t know President Bush had
established a “shadow government,” moving dozens of senior civilian
managers to secret underground locations outside Washington to ensure
that the federal government could survive a devastating terrorist attack
on the nation's capital, The Washington Post says in its Saturday
editions.

Senate Majority Leader Thomas A. Daschle (D-S.D.) told
the Post he had not been informed by the White House about the role,
location or even the existence of the shadow government that the
administration began to deploy the morning of the Sept. 11 hijackings.

An aide to House Minority Leader Richard A. Gephardt (D-Mo.) said he was also unaware of the administration's move.

Among
Congress's GOP leadership, aides to House Speaker J. Dennis Hastert
(Ill.), second in line to succeed the president if he became
incapacitated, and to Senate Minority Leader Trent Lott (Miss.) said
they were not sure whether they knew.

Aides to Sen. Robert C.
Byrd (D-W. Va.) said he had not been told. As Senate president pro
tempore, he is in line to become president after the House speaker.

Similarly, the above-cited CNN article states:

Senate Majority Leader Tom Daschle, D-South Dakota, said Friday he can't say much about the plan.

"We
have not been informed at all about the role of the shadow government
or its whereabouts or what particular responsibilities they have and
when they would kick in, but we look forward to work with the
administration to get additional information on that
."

 

Indeed,
the White House has specifically refused to share information about
Continuity of Government plans with the Homeland Security Committee of
the U.S. Congress, even though that Committee has proper security
clearance to hear the full details of all COG plans.

Specifically,
in the summer 2007, Congressman Peter DeFazio, on the Homeland
Security Committee (and so with proper security access to be briefed on
COG issues), inquired about continuity of government plans, and was refused access. Indeed, DeFazio told Congress that the entire Homeland Security Committee of the U.S. Congress has been denied access to the plans by the White House (video; or here is the transcript). The Homeland Security Committee has full clearance to view all information about COG plans. DeFazio concluded: "Maybe the people who think there’s a conspiracy out there are right”.

As University of California Berkeley Professor Emeritus Peter Dale Scott warned:

If
members of the Homeland Security Committee cannot enforce their
right to read secret plans of the Executive Branch, then the systems
of checks and balances established by the U.S. Constitution would
seem to be failing.

 

To put it another way, if
the White House is successful in frustrating DeFazio, then Continuity
of Government planning has arguably already superseded the Constitution as a higher authority.

Indeed, continuity of government plans are specifically defined to do the following:

***

  • Those within the new government would know what was going on. But
    those in the “old government” – that is, the one created by the framers
    of the Constitution – would not necessarily know the details of what
    was happening
  • Normal laws and legal processes might largely be suspended, or superseded by secretive judicial forums
  • The media might be ordered by strict laws – punishable by treason – to only promote stories authorized by the new government

See this, this and this.

***

In
2007, President Bush issued Presidential Directive NSPD-51, which
purported to change Continuity of Government plans. NSPD51 is odd
because:

Beyond
cases of actual insurrection, the President may now use military
troops as a domestic police force in response to a natural disaster, a
disease outbreak, terrorist attack, or to any ‘other condition.’
Changes of this magnitude should be made only after a thorough public
airing. But these new Presidential powers were slipped into the law
without hearings or public debate.

 

So continuity of government laws were enacted without public or even Congressional knowledge, and neither the public or even Congress members on the Homeland Security Committee - let alone Congress as a whole - are being informed of whether they are still in effect and, if so, what laws govern.

Postscript: Postscript: As I've repeatedly noted, economics, politics and law are inseparable and intertwined. As Aristotle pointed out
thousands of years ago, "The only stable state is the one in which all
men are equal before the law." Without the rule of law, the state
crumbles, and the government bonds and other investments crumble with
it.

As I wrote last year:

What's the hole that is swallowing up the economy? The failure to follow the rule of law.

The rule of law is what provides trust in our economy, which is essential for a stable economy.

 

The rule of law is the basis for our social contract. Indeed, it is the basis for our submission to the power of the state.

 

We
are supposed to be a nation of laws, not of men. That's what humanity
has fought for ever since we forced the king to sign the Magna Carta.

Indeed, lawlessness - the failure to enforce the rule of law - is dragging the world economy down into the abyss.