Stephen Aftergood reports that the full record of the April 30 hearing of Senator Russell Feingold’s (D-Michigan) subcommittee of the Senate Judiciary Committee has just been published as “Secret Law and the Threat to Democratic and Accountable Government

This is the hearing that First Amendment champion Nat Hentoff said at the time "should have been on front pages around the country," but wasn't. Feingold's opening statement set the focus.

More than any other administration in recent history, this administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits.
    It has relied increasingly on secret evidence and closed tribunals, not only in Guantanamo, but here in the United States. It has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress.
    These examples are the topic of much discussion and concern, and appropriately so. But there is a particularly sinister trend that has gone relatively unnoticed: the increasing prevalence in our country of secret law.
    The notion of secret law has been described in court opinions and law treatises as “repugnant'' and “an abomination''. It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. When it became apparent in the middle of the 20th century that Federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public for the express purpose of preventing a regime of secret law.
    That purpose today is being thwarted. Congressional enactments and agency regulations are, for the most part, still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from Congress as well.

An example Feingold gave of the danger of secret law was the Bush Administration's unannounced authorization of torture.

The recent release of the March 2003 John Yoo torture memorandum has shone a sobering light on this practice. A legal interpretation by the Justice Department's Office of Legal Counsel, or OLC, binds the entire executive branch, just like a regulation or the ruling of a court. In the words of former OLC head Jack Goldsmith, “These executive branch precedents are `law' for the executive branch.'' The Yoo memorandum was, for a nine-month period in 2003 until it was withdrawn by Mr. Goldsmith, the law that this administration followed when it came to matters of torture. And course, that law was essentially a declaration that few, if any, laws applied.
    This entire memorandum was classified and withheld from Congress and the public for years on the claim that it contained information that would harm national security. Now, it may be appropriate, prior to public disclosure of an OLC memorandum, to redact information about, for example, specific intelligence sources or methods. But as we now know, this 81-page document contains no information about sources, methods, or any other operational information that could compromise national security. What it contains is a shocking glimpse of the “law'' that governed the administration's conduct during the period this memo was in effect. The many, many footnoted references to other OLC memos we have never seen suggest that there is an entire regime of secret law that may be just as shocking.

(Link added.) The avoidance of secret law has been stressed as well by California courts in ruling on public records access cases.

The second condition (required to be shown to justify the exemption of records as "preliminary drafts") is that the records be documents which are not retained by the Department in the ordinary course of business. . . The second condition for exemption in section 6254, subdivision (a) is a simple and powerful device to prevent the development of "secret law."

Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal.App.3d 704, 714 and fn. 7 (1985).

There is a manifest public interest in the avoidance of secret law and a correlative interest in the disclosure of an agency's working law. . . The revelation of an agency's working law promotes its accountability to the public and the consistent, predictable and nonarbitrary application and enforcement of the law.

State Board of Equalization v. Superior Court (Associated Sales Tax Consultants, Inc.), 10 Cal.App.4th 1177, 1185 (citations omitted) (1992).