Shedding light on secret laws governing presidential power

The recent saber rattling against Iran raises the question of whether the president can take the country to war on his own. Unfortunately, much of the legal advice that presidents have received on war powers remains in a veritable lock box in the Justice Department Office of Legal Counsel. When questions arise about what the government has the power to do, such as whether unilateral action is lawful, it is often the Office of Legal Counsel, not a court of law, that sets the scope of executive power. It builds on its own precedent over time, creating a form of law within the executive branch. But many Office of Legal Counsel opinions remain secret decades after the fact. Because of this, a body of secret law has become a building block of contemporary presidential power.

This system of secrecy curtails the ability of historians like me to research some of the most consequential opinions justifying executive actions. It also undermines the transparency the public is entitled to. That is why I joined four other scholars, along with the Campaign for Accountability and the Knight First Amendment Institute, in a legal challenge aimed at making public the secret law that informs presidential decisions.

An example of the way one presidential action builds upon another and why the history of this secret law matters is a published Office of Legal Counsel opinion from 2014 which found that President Obama had legal authority to order targeted airstrikes without authorization from Congress against the Islamic State of Iraq and the Levant. It relied, in part, on the American invasion of the Caribbean island nation of Grenada in 1983 under President Reagan. This and other executive actions showed that presidents regularly used force without involving Congress. But what, if anything, did the Office of Legal Counsel say to Reagan at the time of the invasion about whether it was lawful? We do not know.