A problem of standards? Another perspective on secret law.

• Author: Hafetz, Jonathan
• Position: Abstract through III. Secrecy and Standards: The Use of Military Force and Surveillance A. The Use of Military Force, p. 2141-2173

ABSTRACT

This Article provides a new perspective on the growth of secret law in the United States. It is widely assumed that the U.S. government's exercise of national security powers suffers from excessive secrecy. Although secrecy presents significant challenges, it does not alone explain the lack of clarity surrounding the government's legal justifications for using military force, conducting surveillance, or exercising other national security powers. The Article argues that what is often labeled "secret law" may also be understood as a consequence of how legal standards are used in this context.

The Article draws on the larger rules versus standards literature to help unpack the debate over secret law. This literature suggests that standards should become clearer and more predictable over time as a body of law accrues. The Article demonstrates, however, that in the national security context, standards tend to expand, becoming more fluid and indeterminate. Though secrecy may impact the inflationary trajectory of national security standards, it does not alone explain it. The Article urges greater attention to how these standards are formulated and applied to produce a body of law that is more determinate and predictable and less prone to expansion. The Article also cautions against viewing national security as a form of legal exceptionalism and instead notes its connections to administrative law more generally.

TABLE OF CONTENTS INTRODUCTION I. THE GROWTH OF SECRET LAW II. RULES, STANDARDS, AND NATIONAL SECURITY III. SECRECY AND STANDARDS: THE USE OF MILITARY FORCE AND SURVEILLANCE A. The Use of Military Force 1. Detention 2. Targeting and the Use of Force B. Surveillance and Bulk Data Collection IV. SECRET LAW AS A PROBLEM OF STANDARDS: SOME IMPLICATIONS CONCLUSION INTRODUCTION

It is commonly--and correctly--assumed that U.S. national security policy suffers from excessive secrecy. The focus is typically on how the executive branch conceals the legal authority and legal justifications for its actions, triggering complaints about secret law. (1) The phenomenon of secret law has been associated with various high-profile counterterrorism measures, from drone strikes to surveillance programs. Commentators have described the threat that secret law poses to the separation of powers, democratic accountability, and other tenets of the modern liberal state. (2) But national security secrecy also helps mask--and is sometimes confused with--a lack of determinacy in the law itself.

In some instances, the debate over secret law has less to do with transparency than with executive branch efforts to treat congressional delegations as invitations to develop broad and malleable standards that provide sufficient elasticity to respond to heterogeneous, often rapidly developing events. (3) A similar impulse helps explain attempts by executive branch officials to strip rules of their ordinary meaning, causing their sub rosa transformation into standards. (4) In both instances, focusing narrowly on secrecy can obscure underlying tensions over how the law is given--or not given--content.

Although transparency remains important, this Article suggests secrecy's limits as an explanation for what are, in part, concerns about the content of the underlying legal authority itself, including the degree to which it constrains government officials and provides notice to regulated actors. Secrecy may be more acute in matters affecting national security. However, this Article cautions against viewing national security as an isolated outpost of legal exceptionalism. By examining secret law against the larger rules versus standards literature, the Article builds on an existing, but underdeveloped, body of scholarship that situates national security within the broader framework of administrative law. (5)

This Article thus seeks to reframe the debate about national security secrecy as a debate, at least partly, about standards. It cautions against focusing exclusively on transparency without regard to how the underlying legal authority is designed and implemented. The Article suggests that increasing avenues by which standards can gain content through their application to specific cases, such as through judicial review, can help counteract the indeterminacy that is often associated with and sometimes mistaken for secret law. Such review, moreover, can also mitigate the inflation of legal authority through standards, although the degree to which courts will impose constraints remains uncertain. (6)

A principal goal of the rule of law is to ensure obedience to rules and avoid arbitrariness. (7) As Lon Fuller explained, secret law undermines the internal morality of law itself, undercutting the obligation to obey the law's command. (8) Secrecy can threaten the rule of law not only by masking the legal authority by which power is exercised but also by concealing the fluidity and indeterminacy of that authority itself. Although such indeterminacy can give public officials greater latitude to respond to diverse and unforeseen challenges, it can also enable authoritarian models of governance. Secrecy, moreover, can undermine the principle of equality by enabling authorities to treat the law's subjects in a discriminate manner. (9)

Part I describes the growing concerns about secret law in the United States and theories advanced to explain it. Part II surveys the literature on rules and standards. It emphasizes the features of standards that are particularly relevant to understanding their operation in the national security context: their provision of broad ex ante guidelines that enable government authorities to respond to diverse situations; their lower cost to promulgate relative to rules; and the expectation that they will be sharpened over time through their application to individual cases by courts and agencies.

Part III applies these insights to national security secrecy. It focuses on two commonly cited instances of secret law: (1) the use of military detention and lethal force against terrorist groups under the Authorization for Use of Military Force, and (2) new, more expansive government surveillance programs, such as those that rely on bulk data collection. It explains how what is often diagnosed as legal secrecy may also be understood as a function of how legal standards are employed in these areas. Part IV then discusses several implications of reframing the question of legal secrecy as one of standards in the national security context. Although it recognizes that public officials require some degree of both flexibility and secrecy, this Article suggests the need to strengthen the mechanisms by which standards can be developed through their application to individual cases.

1. THE GROWTH OF SECRET LAW

   Commentators have highlighted the growth of legal secrecy in recent years. Building on pioneering work by Kim Lane Scheppele, (10) David Pozen has applied the distinction between deep and shallow secrecy to the control of national security information. (11) Professor Pozen explains that a secret is deep when a small group of similarly situated individuals keeps the secret's existence from the public. (12) By contrast, "a secret is shallow if ordinary citizens understand they are being denied relevant information and have some ability to estimate its content." (13) The former includes not only the operational details of a particular counterterrorism initiative but also the legal authority to engage in it. Heidi Kitrosser has drawn a similar distinction between what she terms "macro-transparency" and "micro-secrecy." (14) Professor Kitrosser argues that a law's "execution must be traceable to publicly created and publicly known laws [macro-transparency], even if those laws allow their execution to occur in secret [micro-secrecy]." (15) Secret law is a failure of macrotransparency. Bruce Ackerman has similarly emphasized the distinction between secret and acknowledged programs. (16) These scholars all share the view that the greatest threat to democratic accountability and separation of powers comes when a particular program--and the legal rationale for it--remains hidden from the public. (17)

   Others have resisted distinctions between deep or macro-secrecy, on the one hand, and shallow or micro-secrecy on the other, instead emphasizing the connection between secrecy and illegality. Jenny-Brooke Condon, for example, has cautioned against focusing too heavily on secrecy per se. (18) She argues that the focus should instead be on illegal secrecy, observing that "'shallow secrets' can ... be no less problematic than deep secrets when they insulate the government's illegal conduct from judicial and public review." (19) In a similar vein, Jameel Jaffer has concentrated on the relationship between secrecy and government accountability. (20) He argues that "known unknowns," or information that is secret only formally and officially, but which the public knows about, can "sever the connection between transparency and accountability" for government misconduct. (21)

   U.S. counterterrorism policy after 9/11 provides fruitful ground for the study of legal secrecy. Secrecy has permeated the detention and interrogation of terrorism suspects, the use of lethal force through drone strikes, and the creation of new surveillance programs relying on bulk data collection. Sometimes, the program itself is secret ("deep" secrecy); (22) other times, it is public, but its details remain hidden ("shallow" secrecy). (23) In both instances, the public authority justification for the particular government activity may be obscured or provided at a high level of generality through mere references to a statute or to the President's constitutional authority as Commander in Chief. (24) Such abstracted descriptions of the government's legal authority, without further elaboration, have contributed to the perception of secret law.

   As information becomes public--whether...