By Sudha Setty, Assistant Professor of Law, Western New England College School of Law. Professor Setty is the author of a recently released ACS Issue Brief, "National Security Without Secret Laws: How Other Nations Balance National Security Interests and Transparency of Law."
A fundamental tenet of the rule of law is that a state has no secret laws. Yet in the post-September 11, 2001 era, the Bush administration maintained secret legal policies governing parts of the "war on terror" that implicated human rights and civil liberties issues. Some of these then-secret legal policies-such as the 2002 and 2003 Office of Legal Counsel (OLC) memoranda sanctioning torture during the interrogation of suspected terrorists-staked out positions at odds with legislation, treaties and court decisions. Both the substance of these memoranda and the secrecy surrounding them were rightly criticized by many scholars and activists-notably including Dawn Johnsen, President Obama's nominee to head up the Office of Legal Counsel.
But is disclosure and transparency really feasible when we're talking about counterterrorism, or do we undermine our national security programs in an effort to adhere to the rule of law? The Bush administration defended its extreme lack of disclosure by claiming that various legal policies, including the OLC memoranda, would, if disclosed, assist the cause of those plotting terrorist acts against the United States. In my recently released Issue Brief, I reject this particular defense of secrecy based, in part, on the fact that other nations facing serious national security issues-I consider India, Israel and the United Kingdom-do not resort to the creation of bodies of secret law to provide legal comfort for their counterterrorism operations.
The substance of India's antiterrorism policies is often harsher than what has been (thus far) established in the United States-for example, antiterrorism laws allow for lengthy preventive detention and the denial of substantial access to counsel before trial. However, the process by which Indian antiterrorism legal policy is developed is relatively transparent. Repeatedly, the question of how to frame a long-term legislative response to terrorism has been referred to the Indian Law Commission, a nonpartisan commission of respected lawyers and jurists who respond to government requests for legal recommendations. The Law Commission circulates its reports and recommendations to the public and distributes reports to government officials for review, comments and, ultimately, debate in Parliament.