Surprise Agreement at Senate Hearing on “Secret Law”

I testified yesterday on “Secret Law and the Threat to Democratic and Accountable Government”  before the Senate judiciary committee’s subcommittee on the Constitution. The hearing, chaired by Sen. Feingold, covered the range of the Bush administration’s “secret law.” I talked primarily about the terrible harm of secret (and profoundly flawed) opinions of the Office of Legal Counsel. 

Briefly, I told the committee that the central question is: “May OLC issue binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws—and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly … the answer to that question must be no.” “This combination—the claimed authority not to comply with the law and to do so secretly—is a terrible abuse of power, without limits and without checks. It clearly is antithetical to our constitutional democracy.” (My written testimony is here .)

OLC’s Deputy Assistant Attorney General John Elwood denied there was any problem (at least, not since he joined the government in late 2005—he pointedly avoided talking about the John Yoo and other memos that came before). He said that he agrees with, and OLC now follows, the 10 “Principles to Guide the Office of Legal Counsel” co-authored by me and 18 other former OLC lawyers in response to the initially leaked OLC torture opinion. I said no, from what we can tell from what’s public, they don’t follow them all, and they certainly didn’t in the Yoo years. Elwood also sparred with Sens. Feingold and Whitehouse, who were incredulous at his claims that the Bush administration, in fact, is keeping Congress briefed and informed about OLC’s legal conclusions and reasoning (even if it won’t always release its opinions). 

Republican ranking member Sam Brownback, Elwood, and Republican-invited witness Brad Berenson (former associate counsel to President Bush) took issue even with the term “secret law,” claiming that OLC simply interprets laws for the government, and doesn’t make law that governs the lives of private persons. You can well imagine the responses to that claim—government torture and spying don’t affect the lives of people!—from me and the other witnesses invited by the Ds (Steven Aftergood of the Federation of American Scientists, Heidi Kitrosser of University of Minnesota Law School, and J. William Leonard, former director of the Information Security Oversight Office). (Also invited by the R’s was David Rivkin.)

So far, all very predictable. Here is the most surprising and promising thing about the hearing: Berenson said he agreed with my central point that we have a problem with the Bush administration violating laws in secret (though he argued, and I disagreed, that on many national security matters only Congress and not the American people need to be notified). Even more notable, Berenson also agreed with my suggestion (building on a proposal from Professor Trevor Morrison) that perhaps Congress should enact legislation to require additional reporting, so that the executive branch has to tell Congress not only when it refuses to comply with a statute, but also when it (mis)interprets a statute by relying on the constitutional-avoidance doctrine. (A standard ploy, of course, by the Bush administration is to deny that it in fact is violating statutes, but instead claim it is interpreting them in order to avoid a conflict with Bush’s sweeping and plainly incorrect views of his own constitutional powers.)

Berenson’s agreement with my proposal led Sen. Brownback to turn to Sen. Feingold and say he would be interested in working with him to pursue the possibility of such legislation. Stay tuned …