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At least 74 opinions, memoranda, and letters issued by the Justice Department’s Office of Legal Counsel (OLC) between 2002 and 2009 on core post-9/11 national security topics, including intelligence activities and the detention and interrogation of terrorist suspects, remain entirely classified, according to this new report by the Brennan Center for Justice at NYU School of Law. OLC’s advice is legally binding on the executive branch in the same way a court order would be.
OLC opinions are just one component of an unprecedented buildup of secret law created by the federal government since 9/11 through a range of unpublished legal rules and opinions – all issued without public scrutiny or input – that govern policies affecting the lives and liberties of U.S. citizens.
Relying partly on new data obtained through Freedom of Information Act requests, the Brennan Center’s report, concludes that secret law is prevalent throughout all three branches of government. Along with OLC opinions, the report examines classified rulings of the Foreign Intelligence Surveillance Court (known as the “FISA Court”), secret presidential directives, unpublished regulations, redacted opinions in regular federal courts, agreements with foreign nations, closed immigration proceedings, and even classified provisions of legislation.
Among the findings:
The Brennan Center’s report puts forth specific recommendations for reforms to limit the extent and impact of secret law, including raising the standards for classifying legal rules or interpretations; requiring secrecy decisions to be made by an inter-agency panel rather than single official; publishing an index of secret laws including certain basic information about each law; and establishing firm limits for how long law may remain secret.