Rudesill, Dakota S., Coming to Terms with Secret Law (January 6, 2015). 7 Harvard National Security Journal, 2015, Forthcoming; Ohio State Public Law Working Paper No. 321. Available for download at SSRN: http://ssrn.com/abstract=2687223

“The allegation that the U.S. government is producing secret law has become increasingly common. This article evaluates this claim, examining the available evidence in all three federal branches. In particular, Congress’s governance of national security programs via classified addenda to legislative reports is here given the first focused scholarly treatment, including empirical analysis that shows references in Public Law to these classified documents spiking in recent years. Having determined that the secret law allegation is well founded, the article argues that secret law is importantly different than secret fact: the constitutional norm against the former is stronger than against the latter. Three normative options are constructed and compared: live with secret law as it exists, abolish it, or reform it. The article concludes by proposing 10 principles for governing secret law, starting with the cardinal rule of public law’s supremacy over secret law.”