Despite a post-Snowden push for openness, report shows secret laws still abound

The Justice Department has kept classified at least 74 opinions, memos and letters on national security issues, including interrogation, detention and surveillance, the Brennan Center for Justice. Also still classified are between 25 and 30 significant opinions issued between 2003 and 2013 by the Foreign Intelligence Surveillance Court (FISC), the secretive federal court that interprets the law governing foreign intelligence-gathering inside the United States. And at the State Department, 807 international agreements signed between 2004 and 2014 have not been published.

The opinions and memos by the Justice Department’s Office of Legal Counsel (OLC) were written between 2002 and 2009, said the report’s author, Elizabeth Goitein, who obtained several data sets through Freedom of Information Act requests. “This is an extensive body of secret law, which is fundamentally incompatible with democratic self-governance,” said Goitein, the co-director of the Brennan Center’s Liberty and National Security Program. “When the government makes law out of the public eye, the results are more likely to be tainted by bias or groupthink, and are frankly more liable to violate statutes or to be unconstitutional.” But senior national security officials said the government has in fact been particularly transparent in recent years.