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"Secret laws" spike under Obama, and no one knows what they say

Published in Blog on July 17, 2017 by Convention Of States Project

A new survey shows that for the past 30 years, Congress has steadily passed an increasing number of “secret laws”—provisions that are kept from the public eye.

That’s according to an exhaustive study by Dakota Rudesill, an Ohio State professor of law. A former senior national security analyst for the Senate Budget Committee who also worked for the Office of the Director of National Intelligence, Rudesill notes that more and more bills passed by Congress include provisions that allow for secret elements—which become law without the American people knowing what they contain.

Secret laws often come about because of three enormous budget bills that get renewed every year, which fund some of the government’s most secretive programs and agencies: the Department of Defense Appropriations Act, the Intelligence Authorization Act, and the National Defense Authorization Act. Portions of those bills, which fund classified programs include provisions that “can reasonably be read to give a classified addendum” to U.S. law,as Rudesill found.

The study refers only to changes to U.S. law that come through acts of Congress. A president’s executive order can also shape U.S. law, as can the classified Foreign Intelligence Surveillance Court, which secretly approves, among other things, warrants for NSA spying activities. FISA Court rulings can set hidden legal precedent, as with the post-9/11 “raw take” order, which allowed agents at the NSA, FBI, and CIA to share raw intelligence on Americans with fewer restrictions.

Congress, increasingly deadlocked in recent years, has enacted fewer and fewer laws since 1978, the earliest evidence of secret law Rudesill found. But even as total laws passed have decreased, provisions within them that “can reasonably be read” to make a classified change to U.S. law, have steadily risen. As the below chart shows, secret laws have especially spiked twice: In the middle of the Iraq war, under President George W. Bush, and since the second half of President Obama’s first term. 

As for what these “secret laws” actually say, we don’t know, exactly—they’re secret. “It’s kind of remarkable in this age when everything leaks,” Rudesill told Vocativ, “but there’s not one single one of these addenda that’s surfaced in 36 years, so we don’t actually know what’s in it.”

Click here to read more from Vocativ.

National security is important, and sometimes the government has to keep information from the American people. But the rise in secret laws combined with this administration's historic lack of transparency only serves to highlight the elitist attitude prevalent in Washington, D.C. Federal officials don't believe they need to be held accountable to the states and certainly not to the people. Fortunately, an Article V Convention of States can propose constitutional amendments that mandate the accountability our national government so desperately needs. Click here for more information. 


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