Sudha Setty

  • July 31, 2009
    Guest Post

    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.

  • July 23, 2009
    Sudha Setty, a law professor at Western New England College School of Law, says the federal government can and should advance national security policy in a transparent manner. In a new ACS Issue Brief, Setty examines the secrecy surrounding some of the national security policy memoranda produced by the Office of Legal Counsel (OLC) during the Bush administration and concludes that greater transparency and public involvement can produce sounder policy on national security interests.

    Setty writes in National Security Without Secret Laws:

    The claim that national security threats require secret law and an unprecedented lack of transparency is undermined by comparison with other nations [such as India, Israel and Great Britain]. Other countries that face serious national security issues have no mechanism or allowance for secret legal policies to govern national security matters; instead, several nations publicize, disseminate and publicly debate the same type of legal policy that was withheld from public scrutiny by the OLC during the Bush administration.

    Setty's Issue Brief is available here.