US Sen. Russ Feingold testified this week on the pernicious effects of the Bush administration's penchant for creating laws and not telling anyone about them. An excerpt is below (hat tip to Secrecy News); the rest can be found here.
These examples are the topic of much discussion and concern, and appropriately so. But there is a particularly sinister trend that has gone relatively unnoticed – the increasing prevalence in our country of secret law.
The notion of ‘secret law’ has been described in court opinions and law treatises as ‘repugnant’ and ‘an abomination.’ It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. And when it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public, for the express purpose of preventing a regime of ‘secret law.’
That purpose today is being thwarted. Congressional enactments and agency regulations are for the most part still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from the public, and too often from Congress as well.