This week, three national security committees are “marking up” drafts of their annual bills. Based on the early drafts (the “Chairman’s marks”), this year will likely see Congress continuing to write Public Law provisions creating secret law at an historically high tempo.
Last year on Lawfare, I summarized the legislative component of my 2015 general study of secret law as a three-branch phenomenon. My research shows that it is not, in fact, true that all the law Congress writes is public. We are now nearing the end of the fourth decade of congressional secret law, which takes the form of classified legislative documents given the force of law through references in three annual intelligence and national defense statutes.
After a refresher, this post provides a legislative update. I analyze the public record regarding Congress’s classified legislating in the now-completed 114th Congress (2015-17) and in the current 115th Congress to date. I flag a notable precedent for secret law’s contraction and recommend that Congress legislate automatic sunsets for all existing and future secret law.