Month: January 2025

Since 2020, Just Security has been at the forefront of analysis on rapid shifts in AI-enabled technologies, providing expert commentary on risks, opportunities, and proposed governance mechanisms. The catalog below organizes our collection of articles on artificial intelligence into general categories to facilitate access to relevant topics for policymakers, academic experts, industry leaders, and the general public. The archive will be updated as new articles are published.

The post Just Security’s Artificial Intelligence Archive appeared first on Just Security.

Editor’s Note: This article is part of our ongoing symposium on the ICC and the Israel-Hamas war.

Innocent children are at risk of starvation in Gaza. For more than a year, U.S. President Joe Biden has demanded that Israel respect international law and allow humanitarian assistance into Gaza. Israeli Prime Minister Benjamin Netanyahu and Attorney General Gali Baharav-Miara agreed that a national investigation should be conducted but disagree on the mechanism to use for such a process. The International Criminal Court (ICC) has issued an arrest warrant against Netanyahu for starvation as a method of warfare.

Instead of leveraging the ICC’s decision to increase his influence, Biden is opposing the Court’s intervention. Added to the mix, some members of the U.S. Congress want to sanction the ICC for investigating activities that should be investigated, without demanding that Israel stop its tactics that are culminating in widespread starvation and launch a meaningful national investigation. Senators Lindsey Graham (R-SC) and Tom Cotton (R-AR) have gone so far as to threaten sanctions against “any country that aids and abets the arrest of any politician in Israel.”

In a 2003 paper, professors Jack Goldsmith and Stephen Krasner labeled the Court as the “long-held dream” of international idealists and concluded that it “may worsen rather than alleviate human rights catastrophes.”

It is time for U.S. realists to adjust to reality.

Biden has offered full U.S. military and political support to Israel, the normal “realist” recipe, but has exerted almost no influence on Netanyahu’s policies. Netanyahu refused to end the assaults on the civilian population in Gaza, or to adopt a ceasefire and rejected the “two state solution.”

The Gaza conflict presents a unique opportunity to understand the functioning of the system of justice created by the ICC’s Rome Statute, and to reexamine U.S. policies.

Unlike the ad hoc tribunals at Nuremberg and for the former Yugoslavia and Rwanda, the Rome Statute created more than a Court to conduct fair international trials. The ICC is the heart of an innovative international justice system which integrates 125 nations committed to punishing atrocity crimes with a permanent tribunal that only intervenes if they fail to act. “Complementarity” is the principle that harmonizes national efforts and the ICC to investigate and prosecute allegations of grave crimes. The common goal defined by the Rome Statute’s Preamble is to end impunity for atrocity crimes and contribute to their prevention.

When the Rome Statute came into force in July 2002, the Bush administration tried to marginalize the ICC project, and in 2010 the Obama administration tried to control it,[1] but the Court, supported by member States and civil society, fulfilled its role respecting its legal boundaries and became an established institution, a new part of the international system. The United Nations Security Council referred the situations in Darfur and Libya to the ICC, the second decision by consensus, and groups of States are requesting the Court’s intervention in Venezuela, Ukraine, and Gaza.

The United States is not a State party of the Rome Statute; it has enormous discretion to decide its policies and it has followed a selective application of international law, supporting cases against enemies and dismissing those against friends. The United States shared evidence with the ICC against adversaries such as Russian President Vladimir Putin, but criticized the Court’s intervention against allies like Netanyahu.

Biden exposed himself by demanding respect for international law but at the same time rejecting its enforcement by the ICC. The message is clear: it is the “rule of the United States” above all.

Even close U.S. allies like the King of Jordan have criticized Biden’s double standard, affirming that the application of international law should not be optional.

Krasner presented the positive aspects of the lack of impartiality and equality in the application of international law by the United States: “Law can matter for realists, but only because it helps to construct a self-enforcing equilibrium through ones that reflect the preferences of the powerful.” President-elect Donald Trump could adopt such an approach.

Without invoking moral or legal reasons Trump can take advantage of the independent Court’s activity to achieve legitimate U.S. interests not just in Gaza, but also in other situations like Azerbaijan in Armenia or Venezuela. U.S. realism in 2025 requires learning how to achieve national interests by taking advantage of the coordination provided by an independent ICC.

Israel’s Challenge to the Court’s Jurisdiction

The ICC Prosecutor and Chamber fairly implemented their mandate. Back in December 2023, speaking from Ramallah during the Assembly of States Parties to the ICC, Chief Prosecutor Karim Kahn put Israel on notice. He said, “humanitarian assistance must be allowed in at pace, at scale in Gaza . . . if Israel doesn’t comply now, they shouldn’t complain later.”

In May 2024, the Prosecutor implemented his announcements and requested the issuance of arrest warrants against Netanyahu, former Israeli Defense Minister Yoav Gallant, and three senior members of Hamas. U.S. Secretary of State Antony Blinken criticized Khan, arguing that the principles of complementarity “do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.”

The Prosecutor’s request for arrest warrants set off a flurry of activity among States and the international community. The Pre-Trial Chamber accepted amici curiae submissions from States, experts, and NGOs.

In August, the United States requested in its written submission that the ICC “preserve the Court’s complementarity framework” and, quoting the Oslo Accords, argued that while Israel transferred certain criminal jurisdiction powers to the Palestinian Authority, any powers of criminal jurisdiction over Israelis was specifically excluded from the transfer (para. 12).

I used a similar argument in April 2012 when, as the ICC Prosecutor, I rejected a Palestinian request to accept the Court’s jurisdiction. In those days, Palestine was not considered a “State” by the United Nations General Assembly, and the Oslo Accords did not authorize it to investigate Israel citizens. That situation changed in November 2012, when the General Assembly, voted to recognize Palestine as a “Non-Member Observe State” with the ability to join international organizations. The General Assembly’s recognition of Palestine as a “State,” not the Oslo Accords, is the source of the Palestinian Authority’s ability to grant the ICC jurisdiction, as a Pre-Trial Chamber of the Court decided in 2021.

ICC States Parties including Germany, Argentina, Hungary, and the Czech Republic agreed with the U.S. position, but neglected to mention that they did not object to the recognition of Palestine as a State during the debates in 2015 at the Assembly of States Parties. Canada was the only country that objected to the incorporation of Palestine in the Credential Committee debate.

Other countries, like Brazil, South Africa, Norway, Chile, Mexico, Ireland, Spain, and Colombia presented arguments in favor of the ICC’s jurisdiction in the case.

In October, Israel presented objections to the Court’s jurisdiction, challenging Palestine’s ability to provide jurisdiction to the ICC, which the Court rejected the following month (para. 18). Still, the Court made clear that the door to complementarity remains open, if Israel is willing to take it.

Israel Could Quickly Have the Case Dismissed Under the Complementarity Principle

Israel could use the ICC’s legal framework to stop the arrest warrants against Netanyahu and Gallant.

The ICC is respecting the principle of complementarity, which states that the Court intervenes only when national authorities fail to act. As soon as there is a genuine investigation conducted by Israeli authorities concerning the same facts and the alleged legal responsibility of Netanyahu and Gallant the case against them before the ICC becomes inadmissible pursuant to Article 17(1)(a) of the Rome Statute. In that scenario, the arrest warrants should be withdrawn. U.S. political pressure on the Court will not produce such an outcome.

Israel has some relevant precedents to draw on in this regard. The ICC declared the case against Libya’s former Director of Military Intelligence, Abdullah Al-Senussi, inadmissible, clarifying the meaning of the “same facts” requisite. On the other hand, the ICC rejected the admissibility challenge in the case of former Libya’s Saif Al-Islam Gaddafi on the basis that Libya was unable to conduct independent and impartial proceedings against him (paras. 216-218).

The Court found the Kenyan cases admissible, considering that the government had failed to substantiate that it was investigating the same individuals for the same crimes alleged by the Prosecutor (paras. 67-69).

Thus far, Israel has not embraced the complementarity approach. There are no Israeli criminal investigations for the same facts against the same individuals.

An article in Just Security quoting Israel media explained that Israeli Attorney General Baharav-Miara has advocated to open an investigation into events occurring in the war through a “state commission of inquiry,” Israel’s highest-level probe. Netanyahu has apparently opposed the process, fearing it could be a legal ploy to remove him from power. He reportedly prefers a commission where members are appointed by the cabinet. Both appear to understand that a national investigation is the only way to remove the arrest warrants and to stop the ICC’s intervention.

After the ICC issued the warrants a U.S. State Department spokesperson insisted that “[w]e remain deeply concerned by the Prosecutor’s rush to seek arrest warrants,” without mentioning that after six months since the Prosecutor first made the request Israel did not move to conduct investigations.

More importantly, the ICC accepted that Israel still has the option to conduct national proceedings. The judges rejected Israel’s jurisdictional challenge as “premature,” assuring that the government “will have the full opportunity to challenge the Court’s jurisdiction and/or admissibility of any particular case.” (Para. 18).

The Prosecutor’s comments emphasized: “In line with the Rome Statute, the door to complementarity continues to remain open.” It “requires genuine domestic investigations and any necessary prosecution of the same individuals for substantially the same conduct,” he added.

What is the conduct under investigation? The ICC charged Netanyahu and Gallant with the war crime of starvation as a method of warfare; and the crimes against humanity related to the same underlying facts. The Chamber found sufficient evidence at this preliminary stage that both men knowingly deprived the civilian population in Gaza of objects indispensable to their survival – including food, water, and medicine and medical supplies, as well as fuel and electricity.

Biden could be a witness for the Prosecution. He tried to mitigate the starvation of civilians by establishing a provisional port and delivering aerial assistance. Even more, before the U.S. presidential election, the Biden administration threated to cut weapons funding to Israel unless the Netanyahu government allowed appropriate levels of humanitarian aid to enter Gaza within thirty days. When that deadline passed after the election, a State Department spokesperson admitted that “we would like to see some more changes happen.”

It is very clear that the responsibility of those who allegedly planned these assaults on the Gaza civilian population should be investigated. All the legal debates about the crimes committed, and the Court’s jurisdiction will be transferred to Israeli authorities as soon the Israel investigation is genuine. The ball is in Israel’s court.

The Rule of Law Versus the “Rule of U.S.”

Biden has demanded that Israel should respect international law. Blinken went further, saying it is “our respect for international law and the laws of war” that “separates Israel and the United States and other democracies” from “Hamas and terrorist groups that engage in the most heinous kinds of activities.”

Instead of taking advantage of the arrest warrant issued by the Court to increase his influence and at least stop the starvation, Biden opposed the ICC’s intervention in the Palestine situation.

President-elect Trump could do better than Biden on this problem; he will not pretend or portray the United States as a beacon of humanitarian values, nor will he respect international law or the ICC. But he could take another, more “realist” approach: to leverage the Court’s intervention for his own strategic advantage without supporting it.

In 2019, the Trump administration designated (or sanctioned) then-ICC Prosecutor Fatou Bensouda for  her investigation into U.S. personnel involved in alleged torture in Afghanistan. Trump may take a similar stance in the Gaza situation during his second term, but I would like to present him and his team with an alternative.

“America First” suggests that the protection of Israel should not affect the U.S. standing in the world and other Trump agendas, including stopping wars, controlling the group that took control of Syria, putting pressure to stop the conflict between Armenia and Azerbaijan, a peace agreement that could be signed in a few weeks.

The Congress is threatening to sanction close U.S. allies like Canada, the United Kingdom, Australia, and New Zealand if they fulfill their obligations as parties to the ICC. Will Trump be ready to enforce such sanctions? Why would Trump spend his political capital at the beginning of his second term on the ICC when he could help compel Israel to solve the problem itself through national prosecutions?

In fact, the arrest warrant provides Trump with influence over Netanyahu. A Prime Minister facing prosecutions needs protection. And the ICC also provides Trump with an upper hand on other members of the Israel government, including those with extremist views like Minister of National Security Itamar Ben Gvir, that could destabilize any post conflict solution. The Prosecutor has said that he is investigating crimes committed in Ramallah, and a new case by the ICC would be free of costs and responsibilities for Trump.

The ICC could give leverage to Trump in other separate negotiations without any cost, including proposing at the Security Council to refer the Syria or North Korea situations to the ICC. To facilitate a negotiation with Putin, the United States and Russia could vote together at the Security Council for a suspension of the ICC cases in Ukraine in accordance with Article 16 of the Rome Statute.

Furthermore, Senator Marco Rubio (R-FL), Trump’s nominee for secretary of state, is a consistent critic of Venezuelan President Nicolas Maduro. Venezuela is a State party to the Rome Statute, and the ICC is an institution that could be used to help control Maduro’s regime of political repression without a military intervention. The United States could support the implementation of ICC arrest warrants against Maduro or his top generals without infringing on Venezuela’s sovereignty, thus helping bring about the end of the regime.

Trump, different than Biden, could reduce suffering for millions in Gaza and help to change the course of history for nations without invading them.

Beyond the legal debates and policy discussions, the absolute priority should be to prevent the starvation of two million people in Gaza dying in front of us all.

[1] A U.S. government official whom I have known for decades came to The Hague and asked me to close the preliminary examination requested by the Palestinian Authority immediately. See Luis Moreno Ocampo, War and Justice in the 21st Century: A Case Study on the International Criminal Court and its Interaction with the War on Terror (p. 288). Oxford University Press. Kindle Edition.

IMAGE: Israeli Prime Minister Benjamin Netanyahu (C) speaks to former Defence Minister Yoav Gallant (L) at the opening of the 25th Parliament session in Jerusalem on Oct. 28, 2024. (Photo by Debbie Hill/Pool/AFP via Getty Images)

The post Trump’s Realist Option for Int’l Criminal Court Case Against Netanyahu appeared first on Just Security.

Editor’s note: This article is part of the Just Security Symposium on Harold Hongju Koh’s “The National Security Constitution in the 21st Century”.

Professor Harold Hongju Koh’s call for Congress to impose greater transparency regarding secret law is as important and perhaps even more timely than many of his other thoughtful recommendations in his landmark new book The National Security Constitution for the 21st Century. Without question, Congress should as Koh urges finally amend the Insurrection Act, pull back statutory emergency powers, and rewrite the War Powers Resolution (WPR). But ensuring that any secret law-making in the executive branch in particular will get disinfecting sunlight is uniquely important because of the potential for secret law – i.e., unpublished law – to give legal cover for overbroad, unaccountable, and unsustainable uses of these and other laws.

Among Koh’s many accomplishments is his multiple decades of leadership in advocating for transparency, against the backdrop of the federal government’s massive secrecy apparatus – one that includes secret law in all three branches of government. Below, I emphasize first that secret law endures despite claims by legislators a decade ago to have eradicated it. Second, looking at recent years and those ahead, I maintain that two developments – the long-term trend of expansion of executive power and in the nearer term abundant reason to be concerned that President re-elect Donald Trump’s second term may be problematic from a rule of law standpoint – make it imperative that Congress at the first opportunity follow Koh’s recommendation to legislate transparency regarding the secret law generated by the U.S. Department of Justice. Although the present moment does not offer much hope of congressional action, this article closes by emphasizing that this important initial step would serve the interests of both political parties, and that it can build momentum for comprehensive reform of the limited but very real, useful, and problematic phenomenon of secret law in America.

The Enduring Problem of Secret Law

In the 2000s and 2010s, secret law got a good deal of public attention and a degree of lawmaker attention thanks to two waves of scandal that had secret lawmaking at their core. The first involved interrogation (discussed in Koh’s book at 157-63) and surveillance in the years after the 9/11 terrorist attacks in facial violation of publicly-viewable law, resting on highly classified and deeply flawed legal memos from the Office of Legal Counsel (OLC) at DOJ. Other secret memos legally greenlit detention of suspected terrorists and domestic use of the military using similarly poor legal theories. The second wave of scandal centered on revelation by former NSA contractor Edward Snowden in 2013 of expansive U.S. surveillance activities. The colossal Snowden leaks began with an order marked TOP SECRET//SI//NOFORN by the Foreign Intelligence Surveillance Court (FISC) that cited Sec. 215 of the USA PATRIOT Act of 2001 as authority for what the public learned was suspicionless, daily, ongoing bulk collection of the phone records of millions of Americans – one that reflected secret court endorsement of a classified reinterpretation of the text of the statute by DOJ during the George W. Bush and Obama administrations. Today, secret law is out of the headlines for now, but the phenomenon endures. This despite claims by legislators (for examples see my study of secret law here, page 305 and note 224) to have solved the problem in the 2015 surveillance law that Congress passed in response to Snowden’s revelations.

What is secret law? As my scholarship analyzing the public record of this under-studied phenomenon has made clear, it is not as alien to the United States and its legal system as the Kafka-esque term might suggest. I have often put it this way:

By using the term “secret law”… I do not mean to suggest anything nefarious. Having served in all three branches of government, including in the Intelligence Community, I have the greatest regard for the public servants who draft and implement secret law, and for the very real national security considerations that drive its creation. I mean only that there is a body of law that meets the following definition: legal authorities that require compliance that are classified or otherwise unpublished.

Secret law exists in both classified and unclassified-but-unreleased form, and operates amid clashing rule of law values. In its defense, secret law can reflect the good faith desire of public servants to bring the rule of law to the darkest corners of secret national security activities, and to receive confidential legal advice on classified matters. Another “good government” value undergirding secret law is deliberation space: ensuring that lawyers at OLC and elsewhere can provide candid, confidential legal advice. A third pro-secrecy value is national defense: not tipping off the bad guys to the United States’ secret capabilities or intentions in the process of making sure that the law is followed. On the other hand, powerful considerations cut against the very legitimacy of secret law and the practical advisability of its use. Secrecy about how a branch of government understands the law presents an inherent threat to the ability of the people to be self-governing in both personal conduct and policy preference (and voting) senses; disrupts the feedback loop among the three branches of government that is central to constitutional checks-and-balances and separation of powers; and insulates from review (and correction) unsustainable legal claims, error, and abuse of authority, allowing public officials to escape accountability for embarrassing lawlessness, incompetence, and corruption.

My three-branch analysis of the public record of secret law in America and the work of colleagues including Elizabeth Goitein and Ashley Deeks have demonstrated that secret law is a limited but meaningful exception to the general rule in United States that the law is public. Outside of my ongoing research, Congress’s secret law has gotten almost zero attention, but yet for well over 40 years the nation’s legislature has been using cryptic words in annual intelligence and defense Public Laws to create secret law in the never-published pages of classified documents kept in safes in secure rooms in the Capitol. Executive branch secret law includes classified and otherwise unreleased DOJ memos that are the internal law of the executive branch, classified presidential executive orders, together with secret international agreements and an ocean of agency-level memos and directives. The federal judicial branch’s secret law ranges from unpublished regular court opinions to the classified orders of the Foreign Intelligence Surveillance Court (FISC).

“Greater transparency is most urgently needed in the area of ‘secret law,’” writes Koh. Part of the reason is that Congress’s reform efforts have typically been ad hoc responses to the scandal of the day. Resulting legislation has been issue-specific, spotty, and inconsistent rather than principled and comprehensive. Members of Congress who were shocked by STELLARWIND, the post-9/11 warrantless surveillance program, and creative reconstruction of Sec. 215 in secret crowed that transparency measures in the USA FREEDOM Act of 2015 killed secret law, but the reality is different. Congress there imposed transparency requirements mainly on one branch, the judiciary, via a requirement that going forward the FISC’s secret law be published in full, in redacted form, or in summary. True, Congress a few years earlier required the president to share the legal rationale for super-secret covert actions (“black ops”), but otherwise Congress has legislated nothing meaningful to surface the vast subterranean ocean of executive branch secret law. Most of the limited progress lately has been made via FOIA efforts by organizations such as the Knight First Amendment Institute at Columbia and the Brennan Center at NYU. Their document requests and litigations have yielded valuable documents, disclosures, and indexes, but again the secret law problem in the executive branch is thousands of miles (and documents) from being solved. And Congress has done precisely nothing to publish even one of the classified legislative addenda that it has annually given legal force in part or in full since 1978.

Growing Need for Transparency in Our Times

Koh (on page 323) urges Congress to pass the DOJ OLC Transparency Act , which would require prompt publication of all future OLC opinions, and create a process for publication of past opinions. This entirely sensible law would reduce the ability of the executive branch to classify or otherwise withhold secret legal interpretations of the kind that the George W. Bush and Obama administrations used to depart from public understanding of the law, ones that when  leaked were embarrassing, undermined public trust, and were subsequently rejected by all three branches. At any moment in our nation’s history, Congress would be wise to follow Koh’s recommendation. Accountability of government and proper functioning of constitutional checks and balances – which presume a feedback loop involving the three branches and the public – are inevitably imperiled if the federal branch uniquely able to implement the law can also reimagine and hide the law.

Transparency regarding executive branch secret law is especially imperative in our times.

One reason is a phenomenon about which Koh across his scholarly career has written extensively (in his new book, see for example pages 1-6): the long-term expansion of executive power. The Founders left a fair amount of ambiguity in the Constitution as to how separation of powers would operate. Even so, there is no question that the executive of the Twentieth and Twenty-First Centuries acts amid a constitutional equilibrium tilted far more strongly to the executive than at the Founding and in the early years of a national republic in which the Framers gave Congress primary placement in Article I of the Constitution. This broad pattern in American governance has been sequentially accelerated by the New Deal, World War II, Cold War, and in our times spiraling partisanship and congressional gridlock.

As Koh writes, especially pronounced expansion of executive power in foreign affairs and national security has been the result of executive willingness to act, congressional (and public) acquiescence, and judicial deference and avoidance doctrines. Koh in his new volume emphasizes the stronger merits of the Youngstown (1952) vision of shared power over national security and that statutes generally bind presidents, versus an overbroad Curtiss-Wright (1936)-based vision of presidential supremacy by mere invocation of national security needs. Or, by mere invocation of the case’s name: “Curtiss-Wright so the president is right” is catchy, but bad constitutional law set against the Supreme Court’s siding with statute over executive actions in a long line of landmark cases including Barreme (1804), Youngstown (1952), and Hamdan (2006). Congress’s constitutional ability to authorize, structure, limit, or cancel executive action is meaningful only when used, however, and in recent decades the nation’s legislature has let presidents of both parties become ever more unilateral in their exercise of their Article II constitutional authority as well as statutory delegations of authority. As demonstrated by the post-9/11 and Snowden-era revelations, the danger to the constitutional equilibrium becomes only greater when legal secrecy is operative. Secret law allows the executive branch to conceal from the public and Congress its understandings and reconstructions of the law, and then act in the real world (including clandestinely) before the other branches or public are the wiser that the Article II branch has quietly decided that it is no longer bound by how the law reads in the sunlight.

The impending second Trump presidency provides a second source of urgency for Congress to legislate transparency regarding executive branch secret law in service of non-partisan public, congressional, and constitutional equities.

There is good reason for every Member of Congress to be concerned that the second Trump administration could be especially willing to depart from current constitutional norms and settled expectations of the law’s meaning, due to an inter-related array of factors. These include abundant evidence of infidelity to the Constitution and the rule of law (most notably his well-documented multi-prong effort to overturn the 2020 election and subsequent judgements for sexual abuse and fraud, powerful evidence presented in two federal criminal indictments, and conviction on 34 felony counts), an expansive agenda (including military-assisted mass deportations) that will generate many complicated legal questions and incentives to read presidential powers aggressively, clear indications that the Trump administration will seek to curtail the traditional independence of the Justice Department that possesses expansive ability in “law of the executive branch” legal memos to set and revise interpretations of the law, Trump’s stated belief that under Article II of the Constitution he can do whatever he wants, and expectations that Trump will seek to assert a level of personal control over executive branch personnel without precedent in living memory (via conversion of thousands of civil service positions into new “Schedule F” positions subject to firing for political reasons, mass recess appointments, or emplacement of loyalists in top positions on an acting basis without Senate confirmation under expansive authority in the Federal Vacancies Reform Act).

Individually and collectively these considerations – especially when paired with long-term growth in executive power and the general obligation of personnel to comply with orders that are not clearly illegal – reasonably raise questions about the incoming administration’s fidelity to the law as it is publicly understood. That in turn super-charges the risks to the constitutional order associated with executive use of secret law, and augers strongly for enhanced transparency.

The post-9/11 classified OLC memos during the George W. Bush administration were authored in less partisan times but nevertheless reflect several of the factors just mentioned, and in that way stand as a cautionary tale and potential bad precedent. After 9/11, a president who had the benefit of the executive branch’s massive institutional and secrecy capabilities ordered agencies to go around statute on the basis of an overbroad Article II presidential supremacy theory of the Constitution, one deployed in secret OLC memos that radically reinterpreted the law and which were crafted by presidential appointees (most notably former OLC lawyer John Yoo) who shared the Chief Executive’s overbroad claims of presidential authority. Before Congress, the courts, or voters knew it, deeply secret executive branch law was operating outside of expectations of the law based on the law before the public, yet provided sufficient basis for federal agencies to surveil Americans and to detain and torture suspected terrorists in violation of statute.

Of course, no one knows what the next four years will hold. Trump is a politician, and secret law scandals hurt the political capital of his predecessors George W. Bush and Obama during their second terms. Also, many controversial things that once-and-future President Trump and those around him said before and during Trump’s first term proved a poor guide to what he actually did. Recall, too, that Trump did not ultimately pursue a number of dangerous and legally problematic actions urged by associates and supporters during the run-up to the Jan. 6, 2021, attack on the Capitol, including imposition of martial law and having the military seize voting machines. And, it is entirely possible that now re-elected Trump will feel less wedded to often extreme campaign rhetoric that was driven at least in part by criminal cases that his re-election is largely sweeping away.

A Time to Act

Whatever the Trump second term holds, Koh has it right that Congress needs to act to require disclosure of all OLC secret law. Congress cannot do its constitutional work of oversight and lawmaking responsibly, and the electorate cannot cast informed votes, without knowledge of how the president and his subordinates are interpreting and implementing the law. Although there is little desire today among Republicans in Congress to do anything Trump might find distasteful, it is important to remember that his party in Congress did at times oppose him during his first term (on war powers, for example) and that better transparency rules would benefit them when the wheel turns and Democrats next sit atop the executive branch.

Whenever the politics might allow it, legislating a requirement for DOJ to publish its secret law would build momentum for additional steps to patch the many gaps in the transparency regime regarding secret law. A sensible follow-on would be expanding the reporting requirement to the entire executive branch, or at least apply the rules that Congress legislated on the FISC in 2015: going forward any binding new construction of law must either be published in full, released with redactions to sensitive facts (sources and methods of intelligence collection, names of persons or classified programs, weapons capabilities, etc.), or summarized in unclassified form. And then the files need to be cleaned out, with this approach applied to all prior unpublished binding opinions in the executive branch.

Next up would be legislating a uniform set of principles and rules to govern secret law across the entire federal government. I have set out such rules for the road in my scholarship and pieces in Just Security and other publications. These include a Public Law Supremacy Rule (secret interpretation and new secret laws must defer to public understanding of public law), an Anti-Kafka Rule (no secret criminal law), a Shallow Secrecy Principle (the public must be notified whenever new secret law is created, in a manner that does not divulge sensitive information but allows the public to expect that their congressional representation will go behind the curtain and have a look), an Anti-Inertia & Accountability Rule (all secret law has a short sunset date, requiring today’s public officials to act affirmatively to renew it and thereby take ownership), a Plurality of Review Principle (secret law gets multiple stages of review in each branch, and all of it is shared with Congress), and creation of a Secret Law Corps (a carefully vetted cadre of non-partisan lawyers in all three branches cleared to read all secret law, to ensure that the legal process regarding secret law can unfold with actual full knowledge of the law).

* * *

The future of American governance, especially in the national security space where power and potential consequences are at their apex, today is uncertain. Some of Trump’s first term past will likely be prologue. The second term is likely to hold surprises too – in actions taken, not taken, and due to secrecy only revealed at a late date or even after Trump leaves office.

Whatever happens, additional transparency will only be for the better under Trump and his successors. Congress, the courts, and the public share with the executive branch, lawyers, and other professionals the common responsibility of maintaining the rule of law. Each of these actors cannot do that civic work without knowing how the president and his subordinates understand and are applying the law.

Koh always has much to teach, and his excellent update to his landmark work The National Security Constitution (1987) is enormously instructive and provocative of reflection, further research, and action. The Congress he has informed so many times as a witness and advisor should move swiftly to implement his call for greater transparency. That starts but ought not end with surfacing for Congress the classified precedents of the “Supreme Court of the executive branch,” DOJ’s Office of Legal Counsel.

IMAGE: The moon rises over the US Capitol Dome at sunset in Washington, DC, December 28, 2020. (Photo by Saul Loeb/AFP via Getty Images.)

The post Congress Must Heed Koh’s Call to Surface Secret Law appeared first on Just Security.