Welcome to the Tech Policy Podcast. I'm Evan Swartzraber. On today's show, Secret Law,

when Edward Snowden revealed information about U.S. surveillance programs, the public was outraged,

but what might surprise many Americans is that Congress was in the dark too. How do we have a situation

where our elected representatives don't even know what's going on?

Can a law be secret and still be enforced? Isn't that kind of an oxymoron? Joining me to discuss this is

Liza Goitin, co-director of the Liberty and National Security Program at the Brennan Center for

Justice. Liza, thanks for joining the show. My pleasure. So you guys have a report out about secret law, and that's what we're going to discuss today.

But just to start the show, what do you mean exactly by secret law?

Sure, and that's an excellent question because it's not self-explanatory.

It is very counterintuitive, so it's important to define the term.

Well, by law, to start with, even something like law is not necessarily obvious.

I mean, there are statutes passed by Congress.

That's what most people think of probably when they think of law.

But there are also binding opinions of courts.

And it turns out there are a lot of other binding opinions as well that are issued by the

executive branch.

There are agency rules and regulations. So there's any number

of different kinds of law. What I mean by law in this report is essentially any rule or legal

interpretation or legal opinion that sets a binding standard for conduct by government officials.

And what I mean by secret, again, this sounds like it should be pretty

straightforward, but it's really not because there's no such thing as a law that's 100% secret

that literally only one person knows because that wouldn't do any good. So the question is really

...