At the time of the American Revolution the principle of the rule of law was focused on the subordination of the executive to legal prescriptions. The founders, who were keen students of history, had culled from their readings the lesson that kings and despots and tyrants had defied efforts to rein in their powers.
In a historic act, culminating in decisions made in the Constitutional Convention, the presidency was made subject to the limits of the Constitution. Executive transparency and accountability were ascendant. With some exceptions, that trajectory survived well into the 20th century, but the rise of the imperial presidency has proven to be prologue to another perilous era: executive branch creation of secret law.
Since 9/11, the administrations of George W. Bush and Barrack Obama have hidden from public view legal memos prepared by the Office of Legal Counsel that have purported to supply the legal justifications for a range of executive branch initiatives: preventive war, extraordinary rendition, warrantless surveillance, termination of the Geneva Convention, defense of interrogations methods widely condemned as torture and, most recently, targeted killings and the use of exigent letters.
Scholarly analyses of OLC memos that were leaked or subsequently released during the latter years of the Bush administration have shredded the reasoning employed by attorneys in that office. Worse than the impoverished and indefensible reasoning, however, is the fact that the Obama administration has refused to release the memos so that they could be scrutinized publicly.
If matters could be made worse, they have been made worse by the judiciary. In the past several years, federal court rulings have granted summary judgment to the Department of Justice, sustaining its claims of the need for secrecy. Its one thing to withhold on national security grounds certain policy decisions that require secrecy, but its quite a different matter to insulate the OLC memos that might disclose advocacy of the desire to violate statutes and treaties, which is what several of the memos have done.
The American people are entitled to an explanation of the legal and constitutional rationales advanced by the DOJ in defense of administration policies. If the executive branch refuses to disclose the decisions it has made, and the reasoning undergirding those decisions, and the judiciary sustains that secrecy the result is the creation of secret law by the executive branch. That pattern inflicts great violence on our constitutional order. Indeed, it diminishes the rule of law when the citizenry is deprived of the opportunity to decide for itself whether governmental programs and policies adhere to the Constitution.
Important cases pending in the federal courts, one seeking disclosure of the OLC memos justifying President Obamas claim of authority to order targeted killings, and the other seeking release of the memo defending the FBIs resort to exigent letters to access phone data, afford the courts an opportunity to stem the tide of executive branch lawmaking and restore a semblance of transparency and accountability.
The Alice-in-Wonderland nature of recent federal court rulings that have failed to find a defensible legal basis for shrouding the OLC Memos in secrecy has introduced a novel and threatening theory into our jurisprudence: if the executive believes a legal memo should be kept secret, it will be kept secret.
When the nation was confronted in 1974 in U.S. v. Nixon the Watergate tapes case with President Richard Nixons claim of an absolute executive privilege to withhold information from the judiciary, the Supreme Court, in an opinion written by Chief Justice Warren Burger, denounced the claim of absolutism as foreign to our constitutional jurisprudence.
Our system rests on checks and balances, fundamental principle that our judges should remember.
Adler is the director of the Andrus Center for Public Policy at Boise State University where he holds appointment as the Cecil D. Andrus professor of public affairs. He serves as an adjunct professor of law in the University of Idahos College of Law, where he teaches courses on the Constitution and the Supreme Court.