Secret law refers to legal authorities that require compliance that are classified or otherwise withheld from the public.[1]
Since about 2015 the branches of the United States federal government have accused one another of creating secret law. Journalists, scholars, and anti-secrecy activists have also made similar allegations. Scholarly analysis has shown that secret law is present in all three branches. One scholar, Professor Dakota Rudesill, recommends that the country affirmatively decide whether to tolerate secret law, and proposes principles for governing it, including: public law's supremacy over secret law; no secret criminal law; public notification of creation of secret law; presumptive sunset and publication dates; and availability of all secret law to Congress.[2]
The Brennan Center for Justice includes in the category of secret law in the United States[3] classified opinions of the Executive Office of Legal Counsel, described as "authoritative legal interpretations that have the same legal force as the statutes they interpreted"; legal opinions of the Foreign Intelligence Surveillance Court, which approves mass surveillance programs; and more than 800 secret agreements with foreign nations between 2004 and 2014.
The term has been used in reference to some counterterrorist measures[4] taken by the Bush administration following the September 11, 2001 terrorist attacks. The Patriot Act has been referred to as having secret interpretations.[5]
In the United Kingdom, many open places freely accessible by the public are actually privately owned public spaces (POPS). Information on ownership is considered confidential, and not provided either by the owners, or by local councils that have the information. As in any private property the owner may require visitors to abide by specified rules; but people freely accessing the place are not informed of the rules, which may nevertheless be enforced by security guards. Typical prohibitions which do not apply to genuinely public spaces include protesting and photography.
Councils mostly refused to provide information on existing and planned pseudo-public spaces. They also refused to say how information could be obtained, or to provide information on private restrictions on exercising the other rights people have on genuinely public land. Councils were criticized for being under the influence of property developers and corporate owners. Siân Berry, at the time a member of the London Assembly, said "Being able to know what rules you are being governed by, and how to challenge them, is a fundamental part of democracy".[6]
Secret laws and their negative effects are described in Franz Kafka's novel Der Prozess (The Trial).[7]