Most citizens assume that all of the law Congress writes is public. That is not, in fact, true. Our general norm of publishing law has a significant and largely overlooked legislative exception: classified addenda associated with three annual national security acts. If a four decade-old practice holds, the Intelligence Authorization Act (IAA), theNational Defense Authorization Act (NDAA), and the Department of Defense Appropriations Act (DODAA) now moving through Congress will all do part of their lawmaking inside these classified documents.
Usually, when people discuss secret law, they are referring to classified or otherwise unpublished presidential orders, Justice Department memoranda, or Foreign Intelligence Surveillance Court decisions. In a recent article, I conclude that this claim of secret law’s existence is generally credible and important, and that secret law is being produced by Congress as well.
To date, Congress’s classified lawmaking has received scant attention outside of a small circle of legislators, committee staff, White House and agency officials, and budgeteers. Yet the public record shows that these addenda govern enormously consequential classified U.S. government activities, including surveillance, covert action, and the use of missile-armed drones.
By using the term “secret law” to describe what Congress is doing here, I do not mean to suggest anything nefarious. Having served in all three branches of government, including in the Intelligence Community, I have the greatest regard for the public servants who draft and implement secret law, and for the very real national security considerations that drive its creation. I mean only that there is a body of law that meets the following definition: legal authorities that require compliance that are classified or otherwise unpublished.
In this post I outline the origins, purposes, and dilemmas of these classified legal authorities, and the varieties of legislative references to them. I summarize the findings of my empirical analysis, recently published in the Harvard National Security Journal. The addenda are an example of a broader three-branch phenomenon of non-published law that we can reasonably term secret law―one with which the nation needs to come to terms.