Academic journal article William and Mary Law Review

A Problem of Standards? Another Perspective on Secret Law

Academic journal article William and Mary Law Review

A Problem of Standards? Another Perspective on Secret Law

Article excerpt

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. …

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