Bush Administration abusing "secret law".

• Position: Law & Justice - Justice Department Office of Legal Counsel's legal interpretations

The Bush Administration's excessive reliance on "secret law" threatens the effective functioning of American democracy, stated Dawn E. Johnsen, professor of law at Indiana University, Bloomington, in testimony to a Senate subcommittee. Johnsen contends that the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the Executive and Legislative branches of government. She testified that the key question is, "May OLC issue binding legal opinions that, in essence, tell the president and the Executive Branch that they need not comply with existing laws--and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly in our constitutional democracy, the answer to that question must be no.

"Congress cannot effectively legislate unless it knows how the Executive Branch is implementing existing laws. Moreover, if the president refuses even to notify Congress when he refuses to comply with a statutory requirement, Congress--and the public--has little ability to monitor the Executive Branch's legal compliance and significant reason for suspicion."

Johnsen testified before the U.S. Senate Judiciary Committee's Subcommittee on the Constitution. Sen. Russ Feingold (D.-Wis.) scheduled the hearing to address secret opinions, agency rules, and executive pronouncements that have the force of law. Johnsen served five years in the Office of Legal Counsel, including as deputy assistant attorney general from 1993-97 and as acting assistant attorney general in charge of the OLC from 1997-98.

She testified that the Bush Administration OLC has been "terribly wrong" to withhold the content of much of its legal advice to the president, especially when it advised that the Executive Branch could disregard Federal laws. She points out that it was only because of leaks that the public learned--belatedly--about legal opinions on extreme...