Intelligence Law School - Course 1: Lesson 4.2.6 Uncodified Statutes [HTML-Only]


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LESSON 4: STATUTORY LAW


4.2 Enactment and Publication of Federal Statutes


4.2.6 Uncodified Statutes


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Annotated Lecture Transcript

4.2.6 Uncodified Statutes

Not all public laws are codified.

There are also uncodified statutes that are absolutely vital to every single intelligence agency in the U.S. Intelligence Community—most notably, intelligence appropriations statutes.

Appropriations statutes aren’t codified because they’re always temporary[1] in nature and constantly modified by Congress.

 

Ø  NSA Act Example: So, when you’re looking through the U.S. Code, don’t expect to find specific appropriations legislation or things like that.

Ø  Yes, they’re public laws, but not all public laws are codified and published.

o   Some statutes may not be important enough to be codified.

o   Other statutes may be codified, but not published in the U.S. Code. This is a rare situation but does happen.

o   An example in the intelligence arena is the National Security Agency Act of 1959.

o   It’s technically codified at 50 U.S.C. Section 402nt, but this code section doesn’t appear in the code and remains unpublished.[2]

o   This is one of the factors that have led so many commentators to state—erroneously—that the NSA has no statutory basis.

o   Not only does NSA have enabling statutes relevant to its operations, but it also has an organizational charter in DoD that serves as its primary organic document.

o    

o   Rareness of Unpublished Organic Statutes: The unpublished NSA statute situation is exceptionally rare.[3]

o   At least it seems to be exceptionally rare.

o   I suppose it’s impossible to know how many statutes regarding the Intelligence Community have been passed and never published.

 

Footnotes

[1] Black’s Law Dictionary defines a “temporary statute” as “(1) A law that specifically provides that it is to remain in effect for a fixed, limited period. (2) A law (such as an appropriation statute) that, by its nature, has only a single and temporary operation.” Black’s Law Dictionary 1421 (7th ed. 1999).

[2] See U.S. Code Popular Name Table entry for “National Security Agency Act of 1959” (noting that the National Security Agency Act of 1959, Public Law 86-36, 73 Stat. 63, is codified at 50 U.S.C. § 402nt although no such section appears in the printed version of the U.S. Code available to the public).

[3] Generally, the idea of unpublished laws is thought to conflict directly with the idea of democratic government and the rule of law. The government is of the people, by the people, and for the people, and the laws ordinarily may not be kept secret from them. This notion changed a bit during the Bush Administration, when intelligence agencies were trying to hide illegal or questionable conduct, they often sought to hide the laws governing that conduct to avoid getting caught. It took a number of years, but slowly we’ve started to retreat from this sort of practice.

 


© 2012 David Alan Jordan. All rights reserved.