Secret laws

I think it was from Solzhenitsyn, somewhere in The Gulag Archipelago (though I can’t find the quote right now, so maybe it was some other source) that Stalin was supposed to have ordered that the Soviet criminal code of the 1930s not be published, with a declaration something like “The only people who want to know what the law says are those intending to break it.”

This seemed to me like merely a good example of the Looking-Glass logic of totalitarianism until I read in Jane Mayer’s The Dark Side about the secret legal opinions that undergirded the Bush torture regime. It’s true that you can’t have secret laws in the US — at least, I think it is — but reinterpreting the law, and making the reinterpretation itself and the underlying reasoning secret, comes pretty close. It’s hard to say you’re still living under the rule of law — in a Rechtsstaat, as the German word says pithily — when the government is constrained only by its own secret interpretation of the law.

And now we have, in the blossoming scandal of US government surveillance of private citizens, the main documents demonstrating government malfeasance are secret court orders justified by secret executive-branch legal opinions.

I am reminded of when my 10th grade history teacher told us that the US Constitution was so inspiring that even the Soviet Union and other totalitarian states had mimicked some of its language in framing their own constitutions, even if their practice was very far from the true meaning of those words. This was supposed to give us a lesson about the perfidy of the Soviets, I suppose, but I asked then — snotty kid that I was — whether that didn’t just mean that a constitution is useless for protecting individual rights.

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