Government Secrecy and The Law

Do you think we are a government of laws, openly debated and openly passed by Congress? Guess again! There is a whole body of largely secret laws enacted by Presidents and not disclosed to the public or sometimes even to Congress. This is nothing new. They go by different names in different eras, but they go back at least to the Truman administration. Obama calls them Presidential Policy Directives (PPDs), Bush ’43 called them National Security Presidential Directives, and Nixon called them National Security Decision Memoranda.

These laws have the same legal force as an executive order but they have one crucial difference. Executive orders are public by law. They must be published in the Federal Register to be effective – PPDs are not. A PPD is a wholly secret law. People must obey it; it can allocate funds; and it can direct people and enable a course of action.

secrecy

Some of these laws are classified. These might relate to nuclear weapons policy, ballistic missile defenses, space policy, cyber security or continuity plans in case of large-scale disaster. Some are directed at our relationships with friends and enemies abroad, like Egypt, Cuba and Libya. But not all are of this plausibly defensible type. A recent PPD by the administration changes our hostage policy, revoking a prior policy by Bush ’43. The contents remain secret but there is widespread speculation that it changes how the government will react if hostage families elect to pay ransom.

These secret laws are not uncommon. So far Obama has issued 30; Bush ’43 issued at least 91; and Reagan issued at least 325. These counts are necessarily imprecise but Obama’s may be accurate because of an inadvertent revelation relating to the title of the latest one.

Only a select few know what these laws say, yet everyone is subject to their direction, although it is unclear what the penalties are for violation or how they are enforced. My best guess is that reading George Orwell’s 1984 might give us some guidance. By and large, only individuals or companies having international dealings are likely to be affected, but in this era of globalization their number is considerable. And the vexing issue of how such laws are funded remains open, though evidently not in the halls of Congress.

Advertisements