Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of classified reports by reference, bestowing on them the status of law."
https://www.brennancenter.org/sites/default/files/publicatio...
I think we need a law to ensure that all such documents are published in a timely manner.
Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA.
Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.
> Now, you can say it would be great if these things were all public. I happen to agree.
In any case, we're agreed on the main point of the article and the point of my original comment.
Do you think that given the potential impact on such issues as torture, extrajudicial killings, and mass surveillance, this growing body of "secret law" should see the light of day? This is the key question.
Are the General Orders of the Chicago Police Department --- the giant binder of rules the CPD sets for the conduct of its employees --- law under this definition?
If an elected official cites an OLC opinion as justification for torture in front of a judge and has a fighting chance of being vindicated, then I consider that OLC opinion to have the "force of the law" irrespective of any conventional technical definition.
In any case, the argument over semantics is uninteresting.
The key question posed by the report and upon which my original comment hinges is whether or not the directives, opinions, judgements, and bills informally described as "secret law" should be made transparent.
I think they should. I don't know what you think because you didn't respond to the question.
Government officials probably cannot cite an OLC opinion in court in front of a judge as justification for torture. That's what my first comment on this thread pointed out. OLC opinions do not create binding precedent, any more than Wesley Snipes's tax lawyer's opinions did for his case.
We don't need a law for that, because non-public directives already don't have the force of law. Agencies already go through an extraordinarily involved process any time they make binding legal obligations. They are not only published, but usually the subject of notice and comment procedures and are subject to extensive judicial review.
Those processes don't apply to what the article is talking about, because the article calls "law" what is actually legal advice to the government about what is legal or not under existing laws. Like any organization, the government has counsel. The government asks that counsel "can we do this?" The answers to those questions are not law, they're legal advice.