Thread: Nation of Laws to Nation Powerful Men Making Laws in Secret

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

Submitted by George Washington
05/27/2011 12:09 -0400
many links on this post

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,â€

this is why you should consider Ron Paul

Who do you think of all of the candidates will send you too the FEMA CAMPS

it isnt going to be a Constitutional Politician

It will be another ROGUE Politician