The rule of law is a relatively new innovation in human societies. Not until recently in our history did people begin to impose actual restrictions on their governments’ ability to subjugate the people in a given territory.
Charles Tilly, a scholar famous for his work on the historical formation of the modern state, explained that, “As authorities sought to draw resources and acquiescence from the subject population…people bargained out (however lopsidedly) new agreements concerning the conditions under which the state could extract or control.”
One of those agreements was that if people had to be subject to rule by the state, the state must also be subject to laws. For this device to work, these legal restrictions on the state have to be transparent and known to the public.
One of the most remarkable things about the Obama administration is how it has refined an innovation of its own: vastly increasing the government’s use of secret laws and secret interpretations of known laws. The clever thing about this kind of secrecy is that it renders the accountability mechanism in “the rule of law” impotent, while making it impossible for anyone to challenge the government.
In the month since Edward Snowden leaked information about the National Security Agency’s bulk collection of the electronic communications of virtually all Americans, more attention has been focused on the Obama administration’s inherently extra-legal secrecy.
In 2012, the secret Foreign Intelligence Surveillance Court, established in 1978 to authorize surveillance warrants for the NSA and the FBI, granted all 1,800 requests from the intelligence agencies. One of these requests, we know from Snowden’s leaks, ordered Verizon wireless to hand over the call data of all its customers in bulk.
“In more than a dozen classified rulings,” reported Eric Lichtblau in the New York Times this month, “the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans…”
“The rulings,” Lichtblau continues, “some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.”
In a subsequent editorial piece entitled “The Law You Can’t See,” the Times criticized “the complete absence of any adversarial process, the heart of our legal system.”
“When judicial secrecy is coupled with a one-sided presentation of the issues, the result is a court whose reach is expanding far beyond its original mandate and without any substantive check,” the Times editorial noted.
There actually have been attempts to challenge dragnet-style surveillance of Americans. In February of this year, the Supreme Court sided with the government in a case challenging these surveillance powers, concluding that the plaintiffs did not have standing to sue the government because they could not prove they were directly affected by the spying programs. The reason they could not provide that proof is that the government keeps it secret.
Amazingly, Obama told PBS’s Charlie Rose in June that this whole process “is transparent,” thanks to the FISA court. To the President, a secret court that interprets secret laws without legal challenge meets an acceptable standard of transparency.
It’s important to note that Obama’s penchant for secret laws doesn’t begin and end with the FISA courts and NSA surveillance. Earlier this year, after unprecedented pressure from the public to make the drone war more transparent, a secret Justice Department legal memo was leaked to the media.
The confidential document detailed the Obama administration’s classified legal interpretation authorizing its covert assassination program, including when Americans’ Fifth Amendment protections against being “deprived of life, liberty, or property, without due process of law” could be overridden.
Without submitting evidence to a court, without any oversight from Congress, and without even making its legal reasoning available to the public, the memo explained, the president could order the assassination of an American citizen so long as at least one “informed, high-level” U.S. official declares them to be “senior operational leaders” of al-Qaeda or “an associated force.”
International law demands that an imminent threat of attack is required in order for a state to initiate the use of force in self-defense. But this Justice Department legal memo secretly interpreted that requirement out of existence. The memo refers to what it calls a “broader concept of imminence” than what has traditionally been required.
“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.
Rosa Brooks, Professor of Law at Georgetown University, has said the Obama administration’s secret management of the drone war is a threat to the rule of law.
“When a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law,” Brooks said in testimony to the Senate Judiciary Committee in April.
U.S. District Judge Colleen McMahon came to that ruling reluctantly, explaining in her opinion that she “can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”
The drone program isn’t the only war President Obama is waging in secret and under murky legal authority. Cognizant of his predecessor’s quagmires in Iraq and Afghanistan, Obama has tried to steer clear of such overt military engagements.
But “the decision to pull back on massive engagements of military force does not mean force is not going to be used,” writes Gordon Adams, professor of international relations at American University. “It just goes underground.”
According to a recent Congressional Research Service report, special operations forces “reportedly conduct highly sensitive combat and supporting operations against terrorists on a world-wide basis,” a practice that has dramatically expanded under Obama.
“Without the knowledge of the American public,” writes historian Nick Turse, “a secret force within the U.S. military is undertaking operations in a majority of the world’s countries. This new Pentagon power elite is waging a global war whose size and scope has never been revealed.”
In a Washington Post report last year on how “the U.S. military is expanding its secret intelligence operations across Africa,” Craig Whitlock noted that Special Operations forces “have played an outsize role in the Obama administration’s national security strategy,” and “are working clandestinely all over the globe, not just in war zones.”
The political consequences of waging war with the knowledge of the American people and the explicit consent of Congress, Obama has apparently surmised, are too costly. Secret wars that sideline Congress, on the other hand, carry very limited repercussions—so long as the public is kept mostly ignorant.
Obama’s profound commitment to secrecy has extended to “a government-wide crackdown” on anyone who dares to leak classified information. But it is increasingly difficult not to leak classified information in an age when the Executive Branch alone can make 92,064,862 classification decisions in a single year, as it did in 2011, according to the Information Security Oversight Office.
This unprecedented crackdown, revealed in detail by McClatchy’s Jonathan Landay, “could make it easier for the government to stifle the flow of unclassified and potentially vital information to the public.”
John Adams famously defined a republic “to be a government of laws, and not of men.” In a 1775 critique, Adams said the king must be “bound by fixed laws, which the people have a voice in making, and a right to defend.”
“An empire is a despotism,” he added, “and an emperor a despot, bound by no law or limitation but his own will; it is a stretch of tyranny beyond absolute monarchy.”
The trend towards not just secret laws but secret government is, as the most recent revelations on NSA spying have illustrated, a grave danger to liberty and to the “bargain” achieved hundreds of years ago that if we must follow the law, so must the state.
John Glaser is a contributor to Antiwar.com and columnist for the Washington Times Communities section. Follow him on Twitter.