Washington, D.C. – In his latest book, “The National Security Constitution for the 21st Century,” Professor Harold Hongju Koh advocates for a significant shift in legislative oversight to strengthen transparency on secret law. His recommendations come at a time when the stakes for maintaining the rule of law across government operations have rarely been higher, underscoring the urgency of reform.
Secret law often remains hidden owing to national security concerns, encompassing undisclosed legal opinions by the Department of Justice, classified presidential directives, and unreleased court decisions. This concealed body of law poses challenges to democratic governance by undermining the public’s ability to oversee government actions and eroding trust in institutions.
Koh’s call for change is underpinned by an analysis of secret law’s persistence in governmental branches despite previous legislative efforts aimed at eradication, such as the reforms introduced following the Edward Snowden revelations in 2013. These initiatives, while significant, were uneven and largely focused on judicial secrecy, leaving executive branch practices largely untouched.
The expansion of executive power, as detailed by Koh, further accentuates the need for transparency. Historically, presidential authority has been incrementally extended, often justified by national security and reinforced by congressional deference. This unchecked growth has allowed the executive to operate with minimal transparency, even redefining legal boundaries outside public scrutiny.
The potential continuation of these trends in the forthcoming presidential term adds another layer of concern. With pressing issues such as national defense and immigration likely to dominate the agenda, the risks associated with secret law—where executive interpretations of statutory powers remain undisclosed—could threaten constitutional balance.
Recognizing these risks, Koh urges Congress to pass the DOJ OLC Transparency Act. This proposed law mandates the prompt release of future opinions from the Justice Department’s Office of Legal Counsel and calls for historical opinions to be made public. Ensuring that these legal interpretations are accessible would curtail the ability of any administration to redefine laws away from public view and scrutiny.
Addressing secret law is not just about promoting transparency but also about reinforcing checks and balances that are foundational to the U.S. political system. Without knowledge of how laws are interpreted and applied, neither lawmakers nor the public can effectively hold the executive branch accountable.
Despite current political challenges, bipartisan support for greater transparency could emerge as legislators recognize the long-term benefits to governmental accountability and public trust. As history has shown, administrations from both political spectrums have faced the consequences of secret law, making this an issue that transcends party lines.
The proposed legislation should include comprehensive measures to expose secret legal processes across all branches of federal government. Principles like a Public Law Supremacy Rule, which mandates that secret interpretations must align with publicly understood law, and an Anti-Kafka Rule, which ensures there is no secret criminal law, could significantly enhance the legislative framework.
In the spirit of furthering this critical dialogue, stakeholders including lawmakers, legal experts, and civil liberties advocates must rally to prioritize and implement these transparency reforms. Only then can the U.S. effectively navigate the complexities of national security while upholding its constitutional commitments.
As Koh profoundly contributes through his scholarly work, the path to a secure and equitable national security environment lies through transparency and informed public oversight. Congress has a pivotal role to play, and it must take decisive action to lift the veil on secret law, safeguarding American democracy for future generations.
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