One of the key hallmarks of a democratic nation is that there are no secret laws. In the post-September 11, 2001 era, the George W. Bush administration relied on national security concerns and the unitary executive theory of presidential power as justifications for maintaining secret legal policies that govern parts of the war on terrorism that affect serious issues of human rights and civil liberties. These legal policies sometimes staked out positions that are at odds with legislation, treaties, and court decisions—but the parameters of the executive branch legal policies were sometimes unknown because of the lack of public disclosure. Administration critics decried the use of secret legal policy, and called for the disclosure of legal opinions generated by the Department of Justice Office of Legal Counsel. Some opinions were disclosed in the waning days of the Bush administration, others were disclosed early in the Obama administration, and still others remain unpublished and unknown. This Article considers the call for disclosure and concludes that it is feasible, desirable, and realistic to expect the timely disclosure of most Office of Legal Counsel opinions. This Article recognizes the historical pattern of politicization of executive branch legal policy during a war or armed conflict, then analyzes how secrecy in the development and implementation of legal policy runs afoul of the rule of law, compromises the quality of legal policy being generated by the Office of Legal Counsel, and undermines public confidence in the integrity of executive branch constitutional interpretation. This Article uses both a historical and a comparative analysis to critique the use of secret law; first, by considering how the United States has historically dealt with the development of executive branch legal policy in wartime; second, by illustrating how other nations that face severe national security threats maintain greater transparency and accessibility for legal policy related to national security matters; and third, how the use of unitary executive theory to support nondisclosure is at odds with historical practice and the rule of law.
57 Kan. L. Rev. 579 (2009)