The Bush Administration's Shroud of Secrecy

Secret Law and the Threat to Democratic Government

By Sen. RUSS FEINGOLD Counterpunch, April 30, 2008

More than any other Administration in recent history, this Administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits. It has relied increasingly on secret evidence and closed tribunals, not only in Guantanamo but here in the United States. And it has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress.
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.’
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