Ending Secret Law: Opening the Office of Legal Counsel

In a democracy, people have a right to know the rules that govern them. Yet today, some of the most important government policies rest on “secret law.” Secret law means legal rules or interpretations that the government follows but keeps hidden from the public. These secret rules shape policy without public debate or oversight, undermining the transparency we expect in a free society. This week, the Checks & Rights Party is shining a light on secret law – what it is, why it’s a problem, and how we can end it by opening up institutions like the Justice Department’s Office of Legal Counsel.

What Is “Secret Law”?

Secret law refers to laws or legal interpretations that are kept hidden from the public even though they are used by officials to guide government actions. Unlike ordinary laws passed by Congress or court decisions that anyone can read, secret law operates invisible to the people. This idea is fundamentally at odds with American democracy. In fact, the very notion of secret law has been described as “repugnant” – an “abomination” in our legal tradition. For centuries, we’ve recognized that if the government is making rules or setting policies, the public should know what those rules are. When agencies began creating non-public rules decades ago, Congress responded by passing laws like the Freedom of Information Act to prevent a regime of “secret law.” The principle is simple: a free people must be able to learn the laws and interpretations that affect their rights.

Unfortunately, secret law persists. It often takes the form of classified court rulings or confidential legal memos that never see the light of day. Policies can be developed and enforced based on these hidden legal authorities, without citizens or even many elected officials knowing the legal basis. As a result, policy is shaped in the shadows, and the public is robbed of the chance to debate or question government actions before they happen.

Policy in the Shadows: Why Secret Law Matters

When legal interpretations are kept secret, government agencies can act on them unilaterally, with no input from the public or Congress. That means major policies can be implemented without any public debate on the rules that allow them. For example, for years the government conducted a program collecting millions of Americans’ phone records based on a secret interpretation of a surveillance law. Neither the public nor most lawmakers realized that the law was being read to permit such sweeping surveillance – not until a whistleblower’s disclosures forced the truth out. Only then did the country have a debate, and Congress moved to end that program and require more transparency going forward. This illustrates the core problem: if we don’t know how the government is interpreting the law, we can’t debate it or hold our leaders accountable.

Secret law skews checks and balances. Decisions that normally might involve Congress or courts can instead be made behind closed doors. Policies get set based on one-sided legal opinions that no one outside the executive branch can review. Democratic oversight breaks down: the people’s representatives can’t oversee policies they don’t know about, and the public can’t question or vote on issues that are kept hidden. Over time, secret law can even expand executive power, as agencies rely on secret legal justifications to push boundaries. As one oversight official warned, when no one knows an Office of Legal Counsel memo exists, its arguments “do not face the transparency of public scrutiny,” creating an incentive to make outlandish claims of presidential power if they remain secret. In short, secret law means big decisions get made without the sunlight that keeps our democracy healthy.

The Office of Legal Counsel: Government’s Secret Lawmaker

One of the most significant sources of secret law is the Justice Department’s Office of Legal Counsel (OLC). The OLC is a small team of government lawyers that acts as the executive branch’s supreme legal advisor. In theory, courts are supposed to say what the law is. But in practice, many crucial questions never get to a judge – instead, they land on OLC’s desk. When the President or federal agencies wonder “Can we legally do this?”, it’s often the OLC that answers. And once OLC issues an opinion, it is treated as the final word on the law for the executive branch. As a former OLC head explained, OLC’s advice “may effectively be the final word on the controlling law” for the government. In other words, OLC opinions carry the force of law inside the government, even though they’re not court rulings.

The problem is that many OLC opinions are never made public. The OLC has, over decades, built up a large body of legal opinions that bind the executive branch but remain secret. It’s impossible for citizens to even know how large this hidden library of law is, because even the titles and existence of many OLC memos are classified or redacted. Analyses have found that a significant share of OLC opinions aren’t published at all – in one period, over 200 opinion titles were fully redacted, meaning we can’t even tell what topics were addressed. These opinions often deal with extremely important matters of policy and presidential authority. In fact, OLC secret memos have provided the legal basis for major actions: as an oversight group noted in a letter to the White House, OLC memos have justified domestic surveillance programs, changes in immigration policy, and even presidents using military force at home and abroad.

Some of these secret OLC rulings have been behind highly controversial practices. For instance, during the War on Terror, OLC’s secret “torture memos” advised that harsh interrogation methods were legal, which opened the door to abusive practices until those memos were later exposed and withdrawn. Other OLC opinions have been used to justify lethal drone strikes on American citizens overseas, executive surveillance programs, and sweeping claims of executive immunity from prosecution. Yet at the time these opinions were in force, neither Congress nor the public was aware of the legal reasoning that officials were relying on. In effect, OLC was making national policy in secret. As Senator Patrick Leahy put it, these OLC opinions operated as “a secret body of executive branch law” – justifying everything from torture to drone strikes – in ways that might conflict with publicly enacted laws. This kind of secrecy, Leahy warned, is “antithetical to a fundamental premise of American democracy”. When our government’s lawyer can green-light actions in a secret memo, it sidesteps the checks and balances that come from public scrutiny and open debate.

Secret Courts and Hidden Surveillance Powers (The FISA Example)

Another source of secret law can be found in the judiciary: the Foreign Intelligence Surveillance Court (FISA Court), a special U.S. court that approves government surveillance in national security cases. The FISA Court’s proceedings and rulings are almost always conducted behind closed doors due to their sensitive nature. For many years, the legal opinions of the FISA Court were nearly all secret. This meant the government could adopt broad interpretations of surveillance laws without anyone outside a small circle knowing. One far-reaching example was the FISA Court’s interpretation of the PATRIOT Act’s Section 215 to allow bulk collection of Americans’ phone records. The public only learned of this massive surveillance program in 2013, when leaked documents revealed what had been approved in secret. Until those leaks, neither the public nor most members of Congress knew that the law had been read to permit such sweeping data collection.

The shock of that revelation led to a bipartisan push for reform. In 2015, Congress passed the USA FREEDOM Act, which ended the bulk phone records program and also aimed to curb secret law in the FISA Court. Under that reform, the government began declassifying and releasing portions of significant FISA Court opinions. This was a step toward transparency: for the first time, Americans could read some of the court’s legal rulings on surveillance. The law also created a process to bring in independent **“amicus” advocates – outside lawyers with security clearances – to argue for privacy and the public interest in important FISA cases. This helped ensure the FISA Court hears more than just the government’s side when deciding how to interpret surveillance laws.

These changes have improved matters, but problems remain. Much of the FISA Court’s work is still secret, and new legal interpretations can remain classified for years. In some cases, even the scope of what the law covers is hidden. (For example, a recent law tied to FISA was written in a way that incorporates a classified court opinion by reference – meaning the true extent of the law is known only to those with a security clearance.) This kind of secrecy leaves both the public and those who must comply with the law in the dark. It also raises the risk of abusive surveillance practices going undiscovered. We’ve seen that when surveillance law is secret, violations of privacy are more likely to occur. Without transparency, there’s little accountability.

Why Transparency Strengthens Checks and Balances

Keeping the law secret doesn’t just frustrate curiosity – it weakens the very foundations of accountable government. Openness is a core principle that allows our system of checks and balances to function. When legal interpretations are public, Congress can step in if an agency is reading a law too aggressively, judges can hear cases and rule on disputed authorities, and the press and public can raise concerns. Sunlight enables oversight. Secrecy, on the other hand, undermines the rule of law. As the Brennan Center for Justice has noted, secret law denies people the ability to shape the rules that govern official conduct and prevents them from holding the government accountable for violations. If Americans don’t even know what the government believes it can do, how can they challenge abuses or advocate for change? This lack of accountability in turn makes abuses more likely, because officials operate with less fear of challenge. Moreover, secrecy weakens checks and balances: legislators and judges can’t effectively check executive actions when they themselves are kept in the dark.

Transparency, by contrast, builds trust and legitimacy. When the government openly shares its legal reasoning, it reinforces that we are a nation of laws, not whims. If an interpretation is strong and reasonable, public scrutiny will confirm it; if it’s flawed or extreme, exposure will prompt correction. As one advocate explained in pushing for OLC transparency, shining a light on legal opinions promotes higher-quality legal analysis and public confidence in our government. And officials from both parties agree that openness is essential. Senator Charles Grassley, a Republican, has long argued that OLC should stop hiding its opinions: “The public’s business ought to be public. Transparency brings accountability.” Keeping the law public keeps our leaders accountable to the same rules as everyone else – a fundamental American ideal. Indeed, it is a basic tenet of democracy that people have a right to know the law.

Of course, national security and confidential matters can sometimes justify withholding certain details for a time. But those instances should be truly rare and narrow. The default in our democracy should be that legal interpretations used by the government are visible to the public. Only in exceptional cases – where revealing a legal opinion’s content would clearly cause a grave, concrete threat to national security – should secrecy trump the public’s right to know. Experts have argued that the public’s interest in knowing “what the law is” is so vital that only the most grievous, truly certain danger could ever justify keeping the law secret. In practice, even when some operational details must stay classified, the core legal reasoning can often be released without harm. By erring on the side of openness, we strengthen the checks on power and reaffirm the principle that no one is above the law.

Our Plan to End Secret Law

The Checks & Rights Party is committed to ending secret law and restoring transparency to government. We believe that if a legal rule or interpretation guides officials’ actions, the American people deserve to know about it (unless releasing it would pose a genuine, immediate danger). As part of our platform, we have concrete reforms to open up the Office of Legal Counsel and shed light on secret courts:

1. Publish OLC Opinions with Narrow Redactions. We propose requiring the Office of Legal Counsel to publish its final legal opinions, past and future, so that no binding legal rule remains hidden. These opinions should be made public promptly, with only the most limited redactions for truly sensitive information (like names of covert programs or agents). An independent reviewer – for example, a classification review board or inspector general – would oversee any redactions to ensure that OLC isn’t just hiding embarrassing or controversial opinions under the pretext of secrecy. By opening up OLC’s secret memoranda, we can have informed public discourse about the government’s understanding of the law. This reform would prevent future situations where OLC memos authorize questionable actions (torture, surveillance, etc.) without public knowledge. It also aligns with bipartisan calls in Congress to stop “secret law” in OLC – as legislation introduced by senators from both parties has demanded that the Justice Department disclose these opinions to Congress and the public. In short, publishing OLC opinions (with any truly necessary national security omissions) will bring those shadow laws into the sunlight, where they can be checked and balanced.

2. Increase Transparency and Oversight of Secret Courts. We will push to broaden transparency around the Foreign Intelligence Surveillance (FISA) Court and other secret legal authorities. First, we support expanding the role of the independent “amicus curiae” advocates in the FISA Court, ensuring that in any major or novel surveillance case, an independent voice is present to argue for privacy, civil liberties, and the public’s constitutional rights. This helps the court hear both sides and avoid one-sided secret expansions of power. Second, we call for routine declassification reviews of significant FISA Court rulings, with an aim to release the legal reasoning to the public when it won’t clearly harm national security. Thanks to the USA FREEDOM Act, the government has already begun declassifying important FISA opinions; we would strengthen this by setting firm timelines for review and ensuring that the default is to publish the court’s legal interpretations (with only narrow exceptions). Additionally, any new surveillance authority or hidden “secret law” embedded in legislation should be reported to Congress in unclassified terms as much as possible. No law should be so secret that even those governed by it can’t recognize their obligations or rights. By broadening transparency in these areas, we can bolster Americans’ trust that our surveillance programs and national security tools are operating under rules that are known and debated, not concealed. Public oversight of these rulings will reinforce that our intelligence agencies remain within the bounds of democratically approved law.

Through these reforms, the Checks & Rights Party seeks to put an end to secret law while still protecting genuine secrets. We understand that certain operational details must remain classified. However, the law itself – the interpretations and rules that guide officials – should almost always be public. Publishing OLC opinions and exposing the reasoning of secret courts (when possible) will strengthen oversight, improve the quality of legal decision-making, and ensure that We the People know the principles under which our government operates. As one open-government advocate noted, if OLC’s notorious “Torture Memos” had been subject to public scrutiny from the start, it’s highly unlikely those dubious legal justifications would have survived to enable abuse. sunlight and oversight can prevent such mistakes in the future.

Rebuilding Trust and Accountability

Bringing legal interpretations out of the shadows isn’t just a bureaucratic reform – it’s a restoration of a fundamental democratic promise. In America, no agency or official should be able to make binding law by secret memo or secret court decree. The rule of law loses its meaning when the law itself is hidden. By opening the Office of Legal Counsel and other secret law venues to public light, we reinforce the idea that the government answers to the people, not the other way around. We also send a message to public servants: if you are crafting a legal justification for action, you must be prepared to defend it in daylight, not rely on secrecy to avoid accountability.

Our proposals to publish OLC opinions and increase transparency in surveillance courts are non-partisan, common-sense measures that uphold long-standing American values. Leaders from both parties have recognized that secret law has no place in a healthy democracy. Transparency is not about left or right – it’s about maintaining the checks and balances that keep our government honest. It’s about giving citizens the information they need to consent to or dissent from what their government is doing. As Senator Grassley said in support of these ideas, “The public’s business ought to be public. Transparency brings accountability.” When legal policies are debated openly, we all have a chance to weigh in, and the final decisions carry greater legitimacy.

The Checks & Rights Party is dedicated to restoring that legitimacy. We stand for the principle that the laws which govern us cannot be kept secret from us. By ending secret law, we strengthen the rule of law itself. We increase public trust, knowing that our government isn’t hiding the ball about what it thinks it can do. And we make sure that never again will far-reaching policies be implemented in our name without our knowledge. In the United States, the law belongs to everyone. It’s time to throw open the locked doors and let the people in. Secret law has no place in a republic built on transparency, accountability, and trust. By opening up OLC and other hidden corners, we can ensure that the light of democracy touches all of our laws once more.

**Together, let’s end secret law and reaffirm that in America, the law is no one’s secret – it is the people’s common bond.