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National Security Without Secret Laws: How Other Nations Balance National Security Interests And Transparency Of The Law, Sudha Setty
Faculty Scholarship
This Article explores the issues surrounding, and the arguments against, secret law by providing an international comparative perspective. As an example of secret law, the Author cites the lack of transparency surrounding the Bush Administration Department of Justice’s Office of Legal Counsel (OLC) March 2003 torture policy memorandum, which was kept secret for years before being declassified and disclosed in April 2008 in response to a Freedom of Information Act lawsuit. The Author examines the justifications given for nondisclosure, such as arguments that disclosure is incompatible with prioritizing national security. In brief, the Author rejects such a formulation, stating “[t]he …
No More Secret Laws: How Transparency Of Executive Branch Legal Policy Doesn't Let The Terrorists Win, Sudha Setty
No More Secret Laws: How Transparency Of Executive Branch Legal Policy Doesn't Let The Terrorists Win, Sudha Setty
Faculty Scholarship
One of the key hallmarks of a democratic nation is that there are no secret laws. In the post-September 11, 2001 era, the George W. Bush administration relied on national security concerns and the unitary executive theory of presidential power as justifications for maintaining secret legal policies that govern parts of the war on terrorism that affect serious issues of human rights and civil liberties. These legal policies sometimes staked out positions that are at odds with legislation, treaties, and court decisions—but the parameters of the executive branch legal policies were sometimes unknown because of the lack of public disclosure. …