 Hey everybody, thanks so much for for being here. My name is Chris Babitz. I'm a clinical professor here at the law school and delighted to have all of you here for today's event Transparency and freedom of information in the digital age We have a really exciting program today based around two panels of view from the inside panel with some current and former government representatives talking about transparency and FOIA issues and then a view from the outside panel With some representatives from the journalism and civil liberties communities talking about the same set of issues from their perspective and in Between a number of great shorter talks Throughout the day, so I think it's going to be should be a lot of fun We'd like to keep it interactive as much as possible so we'll have some Q&A opportunities during the panels in particular and Just be mindful as it says on the door when you came in we're being recorded So just keep that in mind if you stand up and ask a question, which we hope you will The primary logistical note about the day is that we are starting here and we'll start immediately with three presentations by Jonathan Manis, Esme Caramello and Michael Morrissey and we will then segue directly into our first panel Which will also be in this room and then at about 315 or so We will move across the hall move down the hall here to 2012 where we will pick up with the second set of Programs for the day and we will entice you to do that by having coffee and snacks along the way So you can feel free to grab some of those as you make it across the hall make your way across the hall I think without further ado, I'm going to turn things over to Jonathan and again The idea here is this first set of talks a few different perspectives Jonathan Manis runs this civil the FOIA and civil liberties clinic at Sunni Buffalo Esme Caramello head of our Harvard Legal Aid Bureau clinic here at the law school and Michael Morrissey Who operates muck rock which some of you may have heard of we'll hear more about that in a few minutes If you have questions throughout the day, feel free to ask me feel free to ask the Berkman staff sitting Outside we'll do a more full set of acknowledgments and thank you at the end of the day But just want to say particularly from the start. Thank you so much to the panelists particularly those of you traveled in from out of town Thank you to Mitch Jules Harvard Law School alum who helped us put this on today And thanks to all of you for being here. So without further ado, I'll turn it over to Jonathan I'm very glad to be the warm-up act here, and it's gonna be a great day. I think so So thanks to Chris and to the conference organizers for inviting me it's a real honor and You know, it strikes me that the topic of the conference today couldn't be more timely I'm sure you didn't plan plan for this to be so timely, but given what's going on in Washington and Trump Tower. I think there's lots to discuss. So I want to spend the next 15 or 20 minutes focusing on one Very specific transparency problem That has emerged over the last two administrations and which is likely to continue on into the next specifically I'm talking about the phenomenon of secret law. So To some people in this room The problem with secret law is all too familiar David McCraw who I see here and Jamil Jaffer who you'll be hearing from later today as well They've spent years litigating this issue years of the lies focusing on this Issue but to folks who don't focus on it The notion of secret law might sound like a kind of contradiction in terms. So in this talk I want to do a few things first. I want to illustrate what secret law is by giving you a working definition a few examples Of how it works in practice, then I want to use these examples to draw a few lessons About the practice of secret law. Is this not oh sure So why why the idea is to shed some light on a few questions like why a secret law problem? How can we reduce it or cabin the practice of secret law and then finally I'll get back to FOIA and I'll talk about how the Freedom of Formation Act relates to secret law including the current state of play With respect to whether FOIA allows the government to keep the rules that govern its national security program secret And I'll conclude by proposing, you know a few strategies that advocates might want to pursue So so what do I mean by secret law so well to put it very simply I mean any kind of legal opinion legal directive legal order That governs national security or law enforcement programs, but which is not which is kept hidden from the public So that the key fact here is that these internal rules and opinions are have to be regarded by Government officials as binding on them just in the same way that an executive order or court opinion Or statute would be binding on them It's just that these rules are made internally and are not made public So I'll give a couple examples just to illustrate how it works So take drone strikes targeted killings The government has been conducting targeted killing since 2002 right after the 9-11 attacks But the program has expanded vastly under the Obama administration So you can imagine it raises a number of very controversial legal questions Maybe most centrally the basic question of what standards the government uses to target individuals for death especially in places outside of traditional war zones So since 2010 the ACLU in the New York Times have been litigating Freedom of Information Act lawsuits to obtain the Department of Justice memos that form the legal foundations for this program Those lawsuits though have been part of a much broader campaign I'd say for transparency around targeted killings and that campaign has involved human rights groups domestic civil society organizations journalists of course and GO's and others So how's the government responded to this transparency campaign these lawsuits? Well, first it's completely resisted the idea that a court could order it to disclose the memos that Authorized targeted killing and set up the legal foundations. It's basically fought the FOIA lawsuits tooth and nail At the same time in 2010 the government started as a matter of sort of executive discretion it started giving a number of speeches government officials gave a number of speeches starting to outline the contours of the of the program The first speech was in 2010 Harold Coe who's in the State Department legal advisor gave a speech And then at some point the government also released a white paper that summarized It's well it's first leaked and then they acknowledged it was an actual official white paper And that white paper Outlined the legal justification for the targeted killing of a US citizen So back to the the case law so in June of 2014 In response to the FOIA litigation the second circuit ordered the government to produce the actual office of legal counsel memo That authorized the targeted killing of a citizen But it's important to note that that decision was Based on sort of the narrow theory that the government had waived its right to classify The opinion because it had officially disclosed essentially the same legal reasoning in the white paper And at that point the government chose not to appeal it stopped fighting to keep that one memo secret And then this past summer it released certain other materials a presidential a redacted presidential directive And certain other memos about targeted killings But aside aside from that It has continued to refuse to disclose any of the other legal memos that constitute the legal architecture of this program So as a result, there's still a fair amount. We don't know about targeted killings That's that I think it's fair to say that six years later The secret law of drone strikes is less secret And It's actually now there's not we now know enough about the legal Arctic architecture of drone strikes that Jamil who's not here yet Just published a book about it About the gentleman that was he should go buy that on Amazon.com So that's so that's targeted killings. I'm gonna give one more example It relates to the NSA's mass call tracking program so The very first document that Edward Snowden released through journalists to the public Was an opinion of the foreign intelligence surveillance court And that opinion revealed that the court had secretly Reinterpreted section 215 of the Patriot Act to permit the bulk collection of all of our domestic telephone records Now if you'd looked at the text of section 215 the day before that decision was released You would have had no idea that this was authorized. It seemed like a fairly limited provision authorizing collection of business records that were quote relevant to a terrorism investigation People had concerns with it But nobody thought that this was authorizing bulk collection of all of our telephone records on a daily basis In fact though a series of secret rulings by the FISA court had made it so by reinterpreting the law in secret So those are just two examples of secret law and practice. There's lots of others that could have chosen from Things like torture under the Bush administration government watch listing programs that are still ongoing many other surveillance programs that are Operated in accordance with classified directives and legal opinions But what can we learn from just these two sort of examples? So I'm gonna discuss three key lessons the first I think is that secret law exists. This is a real thing In fact, I'd argue that it's a key feature of the way that the national security state is governed today So some people imagine that when it comes to national security, it's really this is a space that isn't really governed by law This is sort of like a Schmidean domain where executive branch officials just exercise pure discretion to do whatever they think is necessary to protect the nation but I think that that vision has been proven false and Folks like Jack Goldsmith the Slaw School Have pointed out that the national security bureaucracy is full of lawyers and legal opinions and legal rulings and legal directives So I think maybe the better way to characterize it is that The key thing that or one of the key things at least that distinguishes This national security legal ecosystem is the very fact of secret law The idea is that in the national security domain unlike pretty much any other The governing rules interpretations can be hidden from the public more or less at will So the second lesson that I want to draw from these examples is that corrosive that secret law is is corrosive and dangerous in in a number of ways, so You know secret law makes it impossible for us members of the public to know What the rules are and to gauge in you know democratic oversight of those rules It's also difficult or impossible to tell whether the government is violating its own standards if we don't know what those standards are In some cases like with the section 215 program When there are secret legal opinions or legal directives, it can actively mislead the public about what the law allows So none of us thought that about collection with authorized even though it was in secret More broadly Zooming out a little bit. I think that secret law poses a basic challenge to individual liberties and that's because one of the key protections for individual liberties is that We as citizens get to know the rules that the government has to follow Where those rules are secret only the government knows what limits it's supposed to respect and As a result from the perspective of an ordinary citizen It's often going to be impossible to tell the difference between action That's allowed under secret rules and action that is arbitrary or lawless or illegal and this creates a sort of Fundamental power imbalance between citizens in the state We just don't know what the line is between what's legal. It's not and we can't govern our own actions accordingly So just one last major problem with secret law and that's that it makes it difficult for Congress to act as an effective check On the executive branch so even if Congress or members of Congress are read into these programs if they can't speak about them publicly they can't They can't do much to to check the executive branch. They can't do things like hold public hearings They can't issue press releases if they think that there needs to be a legislative amendment to fix secret law problem They can't explain to us why it's necessary because they can't talk about the secret law So in other words congressional oversight is at best Much weaker when the rules in question are secret So, you know, I think there's reason to be skeptical of secret rules Now the third lesson I take from these examples is that One secret law has become public when we have learned about the content of these rules It usually has not been as a result of victories in court at least not directly as a result of victories in court Instead the secret laws that have become public almost always become public in one of two ways either the government Chooses to stop fighting and to disclose documents as a matter of discretion That's what happened with most of the targeted killing memos or a whistleblower decides that it's worth taking a risk and Leaks the documents to journalists who then publishes them and that's obviously what happened with Snowden So that's not to say that FOIA lawsuits are aren't essential or aren't important But that lawsuits alone haven't been enough to get transparency in this area The key I think has been to organize broader movements pushing for transparency and in all the cases that I'm aware of where secret laws become public there has been a coalition of civil society groups and Lawyers and journalists all pushing in the same direction for transparency You know that said FOIA litigation does play an important role in these transparency campaigns You know federal lawsuit focuses public attention on the issue like nothing else it can define the parameters of the transparency fight Even more practically a FOIA lawsuit requires the government to come to court to give reasons for why secrecy is necessary To make a decision about what exactly it's going to keep secret and how it's going to represent those reasons to the public That process itself can prompt the government to change its position even if a court doesn't order it to to do so But ultimately the courts themselves have generally not been willing to order a disclosure against will the government accept narrow cases so So the kids so so the state the state of the FOIA litigation is mixed But even if FOIA alone has them enough to combat secret law I think I think it's still worth taking seriously the idea that the courts could reign in this practice At the very least it seems unlikely that Congress or the executive branch are going to be Taking steps to reform these practices. So we the courts might be the only the only game in town so to speak So I'll spend just a couple minutes describing the current state of the case law challenging secret law And then I'll talk about maybe some ways forward So The basic question in these FOIA cases as suggested is whether the government can withhold documents that constitute the governing law of an agency If those documents are marked classified and You know in a 1975 Supreme Court opinion And a lot of BV Sears the Supreme Court held that the government Couldn't withhold quote working law By claiming an evidentiary privilege like the deliberative process privilege But it left open the question about whether it could withhold working law on the ground on the basis that it's classified or national security secret So the courts of appeals appeared have answered that question the negative the working law doctrine doesn't act as a limit on the government's power to classify information But that said there's a closely related question about whether the government can classify pure legal analysis So the idea is that the legal analysis in something like an office of legal counsel memo Could potentially be separated from the classified facts about the program in question so that that legal analysis alone should be disclosed Then the idea of course is that disclosing the pure legal analysis might Constitute a major part of the secret law or the rules that govern the program even if we're not learning much about how the program actually operates So as far as I'm aware this question about whether pure legal analysis can be classified is Not yet resolved. I think it's pending in the second circuit But I think it's worth remembering that even if the courts ultimately find the legal analysis can't be classified That's likely that I'm out to like a fairly narrow victory for a couple reasons First courts have been pretty quick to find the legal analysis is intertwined with facts that it discloses something about the program Second the judicial determination involved here doesn't allow for any consideration of the public interest in disclosure The only thing the court can consider is whether disclosure would Plausibly cause some possible national security harm. There's any risk to national security They can't consider whether that harm is outweighed by the public interest. That's just not part of the doctrine So it strikes me that right now the prospect that FOIA litigation will constrain secret law is fairly mixed at best So these last couple minutes what I want to tentatively propose is that maybe we should be starting to think seriously About making other kinds of arguments in court specifically constitutional arguments against secret law So it strikes me that there are plenty of resources in the Constitution that might be Relevant so for example the due process clause might might compel the government to provide notice of what the law is when Program and truce on a protected interest in life liberty or property I Think there's also an argument that the first amendment which guarantees a right of access to courts official proceedings and certain records Related to those could be extended to encompass a right of access to governing agency law And under the fourth amendment when it comes to searches and seizures You might argue that a search is constitutionally unreasonable if it's conducted according to rules that are Secret that the target can't know There's also very structural provisions in the Constitution that I'd argue Suggested the Constitution is hostile the secret laws I don't have time to get into the details now and frankly. There's a lot of work to flush these arguments out To see if they have any legs there's also hard questions about how to get these arguments in front of the court and I fully expect that many people in this room Will think that the idea that the Constitution puts limits on the power of the president to make secret rules is completely off the wall But but if I guess if we've learned anything from the recent history of the Supreme Court It's that yesterday's off-the-wall argument can find its way into tomorrow's majority opinion. So So if if the Commerce Clause Doesn't authorize the Government to enact the healthcare mandate Who's to say that the the Constitution doesn't allow the president to govern according to secret rules In any case The very least I think that developing these kinds of arguments advancing in public bringing them into court Could help to further galvanize public movements to demand greater transparency and accountability About the rules that constrain the national security state and that seems like a conversation that it's more important now than ever So thanks very much appreciate it