COMING TO TERMS WITH SECRET LAW Dakota S. Rudesill Ohio State University (OSU) - Michael E. Moritz College of Law January 6, 2015 7 Harvard National Security Journal, 2015, Forthcoming Ohio State Public Law Working Paper No. 321 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 in all three branches, the article argues that secret law is importantly different from secrecy generally: the constitutional norm against secret law is stronger than the constitutional norm against secret fact. Three normative options are constructed and compared: live with secret law as it exists, abolish it, or reform it. The article concludes by proposing principles for governing secret law, starting with the cardinal rule of public law’s supremacy over secret law. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687223>