[Infowarrior] - Court Rebukes Government Over “Secret Law”

[Richard Forno]

http://www.fas.org/blog/secrecy/2009/07/secret_law-3.html

http://www.fas.org/blog/secrecy/?p=2714

“Government must operate through public laws and regulations” and not  
through “secret law,” a federal appellate court declared in a decision  
last month.  When our government attempts to do otherwise, the court  
said, it is emulating “totalitarian regimes.”

The new ruling (pdf) overturned the conviction of a defendant who had  
been found guilty of exporting rifle scopes in violation of the  
International Traffic in Arms Regulations (ITAR).  The court said that  
the government had failed to properly identify which items are subject  
to export control regulations, or to justify the criteria for  
controlling them.  It said the defendant could not be held responsible  
for violating such vague regulations.

Accepting the State Department’s claim of “authority to classify any  
item as a ‘defense article’ [thereby making it subject to export  
controls], without revealing the basis of the decision and without  
allowing any inquiry by the jury, would create serious constitutional  
problems,” wrote Chief Judge Frank H. Easterbrook of the Seventh  
Circuit Court of Appeals.  “It would allow the sort of secret law that  
[the Supreme Court in] Panama Refining Co. v. Ryan, 293 U.S. 388  
(1935), condemned.”

Normally, “A regulation is published for all to see,” explained Judge  
Easterbrook, a Reagan appointee who is considered a judicial  
conservative.  “People can adjust their conduct to avoid liability.   
[In contrast,] a designation by an unnamed official, using unspecified  
criteria, that is put in a desk drawer, taken out only for use at a  
criminal trial, and immune from any evaluation by the judiciary, is  
the sort of tactic usually associated with totalitarian regimes,” he  
said.  See the Court’s ruling in United States of America v. Doli  
Syarief Pulungan, June 15, 2009.

The new ruling “could be a very big deal in terms of export controls,  
and indeed in terms of ’secret law’ in general,” said Gerald Epstein,  
a science and security policy scholar who served on a recent National  
Academy of Sciences panel on export control policy.  “This case goes  
to the heart of the ambiguity of the International Traffic in Arms  
Regulations, which give the State Department great latitude in  
determining what is and what is not covered, and which are  
administered in a notoriously opaque way,” Dr. Epstein told Secrecy  
News.

Export control policy was addressed from various perspectives in an  
April 24, 2008 Senate hearing entitled “Beyond Control: Reforming  
Export Licensing Agencies for National Security and Economic  
Interests” (pdf) that was published last month.

Last year, Sen. Russ Feingold convened a hearing on the subject of  
“Secret Law and the Threat to Democratic and Accountable Government.”  
My prepared statement from that hearing on the diverse categories of  
secret law is available here (pdf).