How the Government Is Passing Secret Laws, part I

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Once upon a time, a team of federal attorneys went before the Supreme Court only to discover that their entire case was based on a revoked executive order and therefore moot.
True story. Look it up. Panama Refining Company v. Ryan. The revoked presidential order was understandably missed by the attorneys. The revocation had never been made public -- an example of what legal scholars refer to as "secret law."
Cases like that caused Congress, in the '30s and '40s, to pen legislation aimed at bringing order to the dissemination of vital government information, amid the chaotic complexity of state administrative laws and downright shoddy record-keeping. Congress also established statutes to keep a growing body of secret law in check.
That's how we got the Federal Register Act of 1935, the Administrative Procedures Act of 1946 and the golden key to open government (and investigative reporting) -- the Freedom of Information Act (FOIA).
Those legislative acts exemplify one of the defining features of American government -- the publicizing of laws and regulations. The political philosophy isn't hard to understand. Secret laws are the antithesis of a free and open society, which explains why the first U.S. Congress mandated that every "law, order, resolution, and vote (shall) be published in at least three of the public newspapers printing within the United States."
But, never mind -- for the moment -- the decline of newspapers, and the harmful implications it has for democratic governance. Even more alarming is the underreported increase of unpublicized "secret laws," clandestinely cultivated in recent years.
We're talking everything from secret interpretations of the Foreign Intelligence Surveillance Act and opinions from the Office of Legal Counsel (OLC) to secret Presidential directives and transportation security orders.
And don't let the word "opinion" throw you off. If, for example, they're "opinions" issued by the OLC -- like the now infamous Yoo torture memos -- those kind of "opinions" are binding on the executive branch.
So, while the Washington press heavy-hitters were analyzing flag pins and pastors, a Judiciary subcommittee hearing was held on "Secret Law and the Threat to Democratic and Accountable Government".
Among the half-dozen or so witnesses to testify was the director of the Project on Government Secrecy at the Federation of American Scientists, Steven Aftergood -- one of the nation's preeminent authorities on secret law. What should have been a top-story across the country was rendered invisible by a tsunami of triviality.
Here's some testimony you probably missed:
"There has been a discernible increase in secret law and regulation in recent years" to the point where "legislative intervention" is required to "reverse the growth."
Unsurprisingly, secret law really became entwined with the government during the Cold War. But today, "secrecy not only persists, it is growing. Worse, it is implicated in fundamental political controversies over domestic surveillance, torture, and many other issues directly affecting the lives and interests of Americans."
The law that governs espionage activity has been re-interpreted by the FISA Court, the specific nature of which has not been disclosed to the public?
In August 2007, the American Civil Liberties Union petitioned the court on First Amendment grounds to make public those legal rulings, after redacting classified information. The court denied the ACLU petition, claiming it didn't have the expertise to decide what information should be redacted.
The denial was issued despite it being evident "that there is a body of common law derived from the decisions of the (FISA court) that potentially implicates the privacy interests of all Americans. Yet knowledge of that law is deliberately withheld from the public. In this way, secret law has been normalized to a previously unknown extent and to the detriment, I believe, of American democracy," Aftergood testified.
Other areas of concern: "there appears to be a precipitous decline in publication of OLC opinions in recent years ... In 1995, there were 30 published opinions, but in 2005 there were 13. In 1996, there were 48 published opinions, but in 2006 only 1. And in 1997 there were 29 published opinions, but only 9 in 2007."
"One secret OLC opinion of particular significance, identified last year by Sen. Whitehouse, holds that executive orders, which are binding on executive branch agencies and are published in the Federal Register, can be unilaterally abrogated by the President without public notice."
Such orders mean "Congress is left with no opportunity to respond to the change and to exercise its own authority as it sees fit. Worse, the OLC policy... implies a right to actively mislead Congress and the public."
Here's something else that's been […] underreported. As of January 2008, the Bush administration has issued 56 National Security Presidential Directives on a range of national security issues. Most of those directives have not been disclosed. "Texts of the directives or descriptive fact sheets have been obtained for about a third of them (19)," Aftergood testified. Only the titles have been obtained on 8 of the directives and absolutely no information is available for 10.
Congress has also gotten in on the action, having "participated in the propagation of secret law through the adoption of classified annexes to intelligence authorization of bills, for example."
Aftergood concluded his testimony, rightly observing that "it should be possible to identify a consensual middle ground that preserves the security of genuinely sensitive national security information while reversing the growth of secret laws."
That's why he's pushing for the passage of the State Secrets Protection Act -- S. 2533 -- which aims to balance conflicting interests of secrecy and public disclosure.
"The rule of law, after all, is one of the fundamental principles that unites us all, and one of the things we are committed to protect. Secret law is inconsistent with that commitment."
Of course, whenever someone points out how civil liberties have taken a back-seat in the name of "national security" under Bush, what's the typical response of true believers?
They call talk radio, blog and write letters-to-the-editor about how "liberals" and "leftists" aid and abet terrorists with a naive insistence that America's political leaders adhere to quaint luxuries like long-established Constitutional freedoms.
The old saw -- "loose lips sinks ships" -- has been replaced by another now familiar brain-dead mantra: "if you're doing nothing wrong, you have nothing to worry about." But the metastasizing growth of secret law pulls the rug out from underneath that flimsy argument. And for obvious reason: you can't know what you don't know.

Pointer will give you his comments on this stuff in a following article withe the same title.

George Bush as a Real McCainiac

How the president has almost become the man he trounced in the primaries.
March 28th 2002
From The Economist print edition

IF THE battle in 2000 to choose the Republican Party's presidential candidate now seems a world away, it is not just because September 11th changed the world. It is also because George Bush trounced John McCain so thoroughly that he seemed to bury everything the Arizona senator stood for.
Back then, the two men appeared to have nothing in common. While Mr Bush campaigned as the choice of the Republican establishment, Mr McCain rampaged against “special interests” and made campaign-finance reform the centerpiece of his domestic agenda. In economic policy, Mr Bush argued for big tax cuts regardless of circumstances; Mr McCain said tax cuts should be proportionate to the size of the budget surplus. Mr McCain wanted an ambitious national-service program; Mr Bush proposed small-scale “compassionate conservatism”.

If you didn’t note the date, this is 6 years ago.
It was a shocking article. “Despite his defeat McCain laid much of the groundwork for Mr. Bush’ post-9/11 presidency… Mr Bush has proved a better spokesman for McCainiac ideas than Mr McCain could ever had been.”

IF THE battle in 2000 to choose the Republican Party's presidential candidate now seems a world away, it is not just because September 11th changed the world. It is also because George Bush trounced John McCain so thoroughly that he seemed to bury everything the Arizona senator stood for.
Back then, the two men appeared to have nothing in common...
But the biggest differences were in foreign policy. The Arizona senator campaigned for a policy of “rogue-state rollback”— by which he meant preventing disruptive small-country dictators getting their hands on weapons of mass destruction, if necessary by arming the local opposition. Mr McCain was the only candidate on either side to promote this theme, and hardly anyone took him seriously. Mr Bush, in contrast, talked about managing great-power relationships and repairing the damage done to America's ties with China, Russia and Europe after, as he saw it, eight years of Clintonian inconsistency. Mr McCain spoke stirringly or scarily, according to how you see these things, about “national greatness”. Mr Bush called soothingly for greater humility in projecting American power abroad...
Yet, if you look at the ideas that currently animate Mr Bush's presidency, they are about as McCainiac as you can get without having spent five years as a Vietnamese prisoner-of-war... In his state-of-the-union speech in January, Mr Bush... delivered his famous warning on the “axis of evil”, rhetorically reformulating Mr McCain's “rogue-state rollback”.
Suddenly, “national greatness conservatism”—Mr McCain's amour fou—has become the passion of the White House too. Confronting threats from small dictatorships, not managing relations with big powers, has become the focus of the presidency. Mr Bush has defined his presidency in terms of success in the war against rogue states and terrorists. To make the comparison complete, Mr Bush has been telling anyone who will listen that he has been reading Edmund Morris's new book on Teddy Roosevelt, one of Mr McCain's often-quoted heroes.
It is almost as if the Arizona senator had won the election. How on earth did this happen? But he still does not see the broader horizon the way that Mr McCain sees it... Abroad, it meant changing corrupt regimes which threaten the West, and encouraging the spread of democracy.
...Whether by prescience or luck, he [MCCAIN] was the first to reach out for the policies that fit the new world wrought by September 11th. Despite his defeat, he laid much of the groundwork for Mr Bush's post-September presidency. But the credit to Mr Bush is probably greater. He has proved quicker to adapt his views than anyone expected, switching seamlessly from great-power maintenance to rooting out terrorists and showing his independence from the Republican establishment by pinching ideas from his rival.
This transformation contains an irony and a question. The irony is that, because the president dominates his party in a way the maverick Mr McCain could never have done, Mr Bush has proved a better spokesman for McCainiac ideas than Mr McCain could ever have been...

By now there’s a lot of critical remarks upcoming from McCain and his
campaign and most important those regarding the size of the troops, initial too small in his eyes to any kind of success.
But in 2002 he said:
“I think we could go in with much smaller numbers than we had to do in the past... I don't believe it's going to be nearly the size and scope that it was in 1991.” [Face the Nation, 9/15/02]
“And I believe that the success will be fairly easy” and “There's no doubt in my mind that... we will be welcomed as liberators.” [CNN, Larry King Live, 9/24/02]
“There's not a history of clashes that are violent between Sunnis and Shias. So I think they can probably get along.” [MSNBC Hardball, 4/23/03]
McCain was asked, “at what point will America be able to say the war was won?” He responded, “...it’s clear that the end is, is, is very much in sight.” [ABC, “Good Morning America,” 4/9/03]
Exactly one year before violence in Iraq peaked: “Overall, I think a year from now, we will have made a fair amount of progress if we stay the course.” [The Hill, 12/8/05]
Now John McCain is outlining his vision for America.
John McCain, looking through a crystal ball to 2013 and the end of a prospective first term, sees "spasmodic" but reduced violence in Iraq and Afghanistan, Osama bin Laden dead or captured and government spending curbed by his ready veto pen.
In particular, he sees a world in which:
- "The Iraq war has been won. Iraq is a functioning democracy, although still suffering from the lingering effects of decades of tyranny and centuries of sectarian tension. Violence still occurs, but it is spasmodic and much reduced."
- The Taliban threat in Afghanistan has been greatly reduced.
- "The increase in actionable intelligence that the counterinsurgency produced led to the capture or death of Osama bin Laden, and his chief lieutenants," McCain said. "There still has not been a major terrorist attack in the United States since Sept. 11, 2001."
- A "League of Democracies" has supplanted a failed United Nations to apply sanctions to the Sudanese government and halt genocide in Darfur.
- The United States has had "several years of robust growth," appropriations bills free of lawmakers' pet projects known as "earmarks," public education improved by charter schools, health care improved by expansion of the private market and an energy crisis stemmed through the start of construction on 20 new nuclear reactors.
- Democrats are asked to serve in his administration, he holds weekly news conferences and, like the British prime minister, answers questions publicly from lawmakers.

Also this is a jolly good one: "Campaigns and the media collaborated as architects of the modern presidential campaign, and we deserve equal blame for the regret we feel from time to time over its less-than-inspirational features," he said.
Well, as boring and inconspicuous as Barack Obama acts will McCain not perform yet, isn’t it? “We belong to different parties, not different countries," McCain says in remarks prepared for delivery in the capital city of Ohio, a general election battleground. "There is a time to campaign, and a time to govern. If I'm elected president,..” God forbid that should be, because it seems to be McCain is an alien and certainly he belongs to the undereducated creatures from another planet.