[jlgaddis]

> As it stands what you're suggesting is at least already illegal, FWIW.

Unless a secret presidential order established a secret law (declared legal by a secret court) that made it legal (but illegal to disclose to the public), that is.

[mpyne]

The "secret order" you refer to is in accordance with the public law, otherwise the "secret court" you refer to wouldn't have said that it's legal.

Invading the mail, on the other hand, is quite explicitly illegal.

[nitrogen]

An undisclosed order that is in accordance with an undisclosed nonintuitive interpretation of the public law oughtn't be legal, and regardless of conformance to the USC, seems to violate the constitution that provides the foundation for the government's existence.

[mpyne]

Edit: I wished I'd read rayiner's sibling reply elsewhere. It explains the point I'm trying to make in a fashion that's about 100x better. -----

To the extent that revealing an E.O. doesn't endanger national security or other legitimate government purposes I agree completely that it should be public.

However I don't agree that it's safe in general to rely on a given Administration's "interpretation of the law". As Snowden has pointed out, the Administration can change... you should assume that what is permissible under the law and Constitution is actually being done, if that actually worries you.

So if the law says that the Government can intercept foreign communications pursuant to a trap-and-trace it's probably a good assumption to make that the Government is actually, at some point, trapping aforementioned communications.

I mean, if this was working just like a normal law enforcement scheme then you'd already have to deal with the possibility that the government is tapping a communications channel pursuant to a regular Article III warrant to investigate communications of a terror cell for months at a time. Presumably this wound theoretically still accumulate enough data (and metadata) to theoretically wreck your theoretical world should a theoretical despotism come to pass.

What an E.O. should do is to define where an Administration will focus its limited resources in enforcing the law. Perhaps they will decline to fully defend laws that are anti-homosexual in nature. Perhaps they will avoid aggressively going after marijuana usage (would be nice!). But even in that situation, if you cross state lines to buy weed you're still technically breaking the law and should be prepared for consequences of that; the E.O. could change tomorrow, after all.

And besides all that, what if they guy making an interpretation is at a much lower level. An individual cop might make a snap decision, do you expect them all to mail you a Policy & Vision Statement each month?

Even if that did, it would be hopeless to try to push the edge of 1000 different "lawful ways to enforce the law". Assume anything the law permits might be done.... and even then, it's hard enough to fully comply with all the law, even the ones that clearly fall within Constitutional guidelines.

[rayiner]

Ugh. When the news media refers to "secret courts" and "secret laws" they're taking some liberties with the definitions of "court" and "law".

The first thing to understand is that one of the basic concepts in our separation of powers system is that the executive has discretion in how it enforces the law. Take something basic like the Sherman Antitrust Act (15 U.S.C. 1). The most important piece is just one paragraph: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal..."

The courts establish the precise contours of what is a "restraint of trade" or what is a "combination" under the law. This creates a set of boundaries for the executive. The executive is empowered to enforce the law, but has discretion within those boundaries. If it thinks some class of things is or is not a violation of the law, it is entitled to prosecute cases accordingly until the courts decide the point one way or another or Congress clarifies the law.

Presidential orders cannot create law, but they can guide the rest of the executive branch's enforcement of the law, within those boundaries of discretion. The President might issue a directive telling the DOJ: "we don't think that such and such agreement is a 'combination' under the antitrust laws, so don't prosecute such cases." Usually these interpretations are public (and are published in the form of regulations). Sometimes these interpretations are secret, in which case the media calls it a "secret law." But the key thing is that the directive only guides executive action that was lawful anyway.

Now, the FISA court has been called a "secret court" but it again serves to guide executive discretion, and is not a court of general jurisdiction. Its opinions are binding on no other court other than itself, and its jurisdiction is extremely limited. The basic principle behind FISA is that the executive can do a lot of things as a part of its foreign intelligence function Constitutionally that we don't necessarily want it to do. In particular, it can conduct surveillance of foreign agents entirely without warrants because foreign agents don't have 4th amendment rights. The purpose of the FISA court is to constrain the executive's discretion in this regard, by requiring it to get a FISA warrant for all foreign surveillance, even though such surveillance would not require a warrant under the 4th amendment.

To circle back to mpyne's point: neither "secret courts" nor "secret law" can override public courts and public law. Rather, they are internal to the executive. They guide the executive's discretionary powers within the boundaries established by public law. If they hadn't written it down, they'd still be entitled to do it, and nobody would complain about any "secret laws" or "presidential directives." The things mpyne mentioned are illegal according to public law, and thus not within the executive's power to do regardless of any secret directives or secret court opinions.