Details Leak On How Secret Global Treaty Will Force Countries To Further Deregulate Financial Sector

from the yet-another-ratchet dept

WikiLeaks has been rather quiet recently — probably something to do with Julian Assange being stuck in the Ecuadorian Embassy in London for the last two years. But today, we saw a flash of the old, dangerous WikiLeaks, with its publication of a major leak concerning the Trade In Services Agreement (TISA). Although Techdirt wrote about this in April, for many this is the first time they have heard about this secretive deal, which has probably come as something of a shock given the global scale of its ambitions and its likely impact. Here’s how WikiLeaks describes its latest release:

Today, WikiLeaks released the secret draft text for the Trade in Services Agreement (TISA) Financial Services Annex, which covers 50 countries and 68.2%1 of world trade in services. The US and the EU are the main proponents of the agreement, and the authors of most joint changes, which also covers cross-border data flow. In a significant anti-transparency manoeuvre by the parties, the draft has been classified to keep it secret not just during the negotiations but for five years after the TISA enters into force.

Despite the failures in financial regulation evident during the 2007-2008 Global Financial Crisis and calls for improvement of relevant regulatory structures, proponents of TISA aim to further deregulate global financial services markets. The draft Financial Services Annex sets rules which would assist the expansion of financial multi-nationals — mainly headquartered in New York, London, Paris and Frankfurt — into other nations by preventing regulatory barriers. The leaked draft also shows that the US is particularly keen on boosting cross-border data flow, which would allow uninhibited exchange of personal and financial data.

The leaked document itself is pretty dry and inscrutable, so wisely WikiLeaks has asked an expert in the field, Professor Jane Kelsey of the Faculty of Law, University of Auckland, New Zealand, to provide a detailed commentary, and this is the best place to start when coming to grips with the leak. Here’s her chilling summary:

The secrecy of negotiating documents exceeds even the Trans-Pacific Partnership Agreement (TPPA) and runs counter to moves in the WTO towards greater openness.

The TISA is being promoted by the same governments that installed the failed model of financial (de)regulation in the WTO and which has been blamed for helping to fuel the Global Financial Crisis (GFC).

The same states shut down moves by other WTO Members to critically debate these rules following the GFC with a view to reform.

They want to expand and deepen the existing regime through TISA, bypassing the stalled Doha round at the WTO and creating a new template for future free trade agreements and ultimately for the WTO.

TISA is designed for and in close consultation with the global finance industry, whose greed and recklessness has been blamed for successive crises and who continue to capture rulemaking in global institutions.

A sample of provisions from this leaked text show that governments signing on to TISA will: be expected to lock in and extend their current levels of financial deregulation and liberalisation; lose the right to require data to be held onshore; face pressure to authorise potentially toxic insurance products; and risk a legal challenge if they adopt measures to prevent or respond to another crisis.

One of the most worrying features of the TISA proposals is the following:

The crucial provision is Art X.4, which would apply a standstill to a country’s existing financial measures that are inconsistent with the rules. That means governments must bind their existing levels of liberalization for foreign direct investment on financial services, cross-border provision of financial services and transfers of personnel. The current rules will be the most restrictive of financial services that a government would be allowed to use. They would be encouraged to bind in new liberalization beyond their status quo.

This is the familiar “ratchet” that we see in copyright law. Here, it means that restrictions on the financial industry can only be reduced, never increased, no matter how badly they screw up the global economy (again). Doubtless proponents of TISA will claim that signatories to the agreement will — of course — retain their sovereignty and ability to take “prudential measures” for the good of their people, just as they have said regarding corporate sovereignty in TPP and TAFTA/TTIP. But as Kelsey points, part of the leaked document shows that is simply not true:

the article is comprised of two sentences that contradict each other. If a government takes a prudential measure that is inconsistent with the agreement, it cannot do so as a means to avoid its commitments under the agreement! So any prudential measures must be consistent with the other provisions in the agreement.

Put another way, governments will have total freedom to legislate in any way they please provided it is compatible with TISA — which means that it must be in favor of the financial industry, not the public. Another section that is written entirely for the benefit of the financial companies, not the public, concerns the protection of personal data:

nothing shall be construed to require a Party to disclose information regarding the affairs and accounts of individual consumers. That means TISA does not affect states’ ability to require disclosure of information, presumably to the government, about individuals. It is not concerned with protecting personal privacy or preventing those who hold the personal data from abusing it for commercial or political purposes.

Given the sensitivity of data protection issues in Europe, this is likely to become a major stumbling block to the ratification of TISA by the European Parliament, assuming it gets that far. Indeed, it’s significant that one of the leading German newspapers, the Süddeutsche Zeitung, used the headline “U.S. grab account data of European citizens” when reporting on the leak (original in German.) That underlines the fact that alongside the new information that the WikiLeaks document reveals about the secret negotiations, another important aspect of the leak is that the mainstream media in Europe are finally aware of TISA, and are likely now to start exploring critically its effect on key areas like privacy and public services.

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Comments on “Details Leak On How Secret Global Treaty Will Force Countries To Further Deregulate Financial Sector”

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ambrellite (profile) says:

5 years sounds long enough

5 years of secrecy after the agreement is implemented should be enough for many of the negotiators involved to have found comfortable positions in the finance industry. Clever move, aside from the sheer ass-hatted stupidity of compelling countries full of millions of unwitting innocents to join a deregulatory financial suicide-pact.

Whatever says:

breaking down borders

I tend to find it funny that when a proposed agreement comes along that would liberalize rules and open borders comes along, you guys are all against it. Restrictive, non-compatible financial laws are one of the strongest ways that a government can control an economy, creating barriers to investment and development. Making some of the base rules similar in more places is a benefit to business, and in the long run to individuals as well.

As for Wikileaks, perhaps people have grown tired of an organization that is more and more about the cult of Assange, and less and less about much else. He’s pretty much held the entire organization hostage by refusing to face the law for his alleged personal indiscretions. It’s classic do as I say, not do as I do stuff that makes it hard to take them seriously anymore. That and of course the issue that Wikileaks is like the janitor in the baseball field taking credit for the home runs that land in the bleachers. They don’t do the work, they just jump in front of the parade and act important. That’s not helping anymore.

John Fenderson (profile) says:

Re: breaking down borders

I think you misrepresent what people are against. What they’re against is that these agreements further cement the power of multinational corporations, further subvert the rights of the people, and further remove already overly powerful entities from scrutiny, oversight, and the rule of law.

Whatever says:

Re: Re: Re: breaking down borders

Down to name calling? How informative.

My opinion is that most of the time, once you take the spin off of a story, you can see it a little more clearly. Usually there are perfectly sane reasons why something is the way it is.

An example would be banking laws like this. There are reasons why it is negotiated out of the public eye, in part to avoid the financial markets attempting to take unbalanced positions to profit from the changes ahead of the rest of the investors.

So I don’t disagree with the article, there are certainly concerns when it comes to having only one way for future movement. There are good reasons to try to harmonize financial systems around the world, there are great benefits for countries that might otherwise be too restrictive in the way they deal with others. Throwing that baby out with the “ratchet” bathwater seems a bit over the top.

nasch (profile) says:

Re: Re: Re:2 breaking down borders

There are reasons why it is negotiated out of the public eye, in part to avoid the financial markets attempting to take unbalanced positions to profit from the changes ahead of the rest of the investors.

It’s out of the public eye, but the big financial players know all the details.

So I don’t disagree with the article,

Well there’s a first time for everything!

Throwing that baby out with the “ratchet” bathwater seems a bit over the top.

You might have a point if anyone were suggesting there should be no such thing as banking treaties. But that’s a straw man.

Anonymous Coward says:

Re: Re: Re:2 breaking down borders

So you didn’t hear about the $147trn fixing of wheat prices, or the LIBOR scandal, where the banks negotiated in secret, and refused to release the information to the public when they were caught?

And yes, that first number is Trillion in the US sense. AS in, nearly ten times greater than the US National debt.

Anonymous Coward says:

Re: breaking down borders

This is essentially imposing regulations on sovereign nations demanding that they do not impose certain regulations. So, no, this isn’t a move tha embodies a free market. Remember that it was also governments that enabled those giants to commit the evil they did and still do on a regular basis.

HT (profile) says:

Re: breaking down borders

Well, maybe you haven’t lived in a country that has benefited from regulation by not having our economy completely fucked by the GFC. Deregulation is okay if you can trust the target industry: time and time again it has been proven that most of these industries that whine about rules are most likely to break them (hence their situation in the first place).

America is fucking retarded in the sense that Enron collapsed due to dodgy business structure and accounting; then, only 7 years later Lehmann Brothers basically did the same thing and fucked the world. These pricks are not trustworthy and in no way deserve nor require these changes – they just want to add another billion or two to their bottom lines by taking advantage of grey areas.

Whatever says:

Re: Re: breaking down borders

Almost every American works in the same way. The housing crash was built on people taking bigger and bigger loans based not on the actual values of their homes but speculative valuations of what they might be worth. Take all that, package them up in nearly blind securities, and you have a powderkeg looking for a time to explode.

Who got rich off of it? Not just the banks – the American citizens who lived it up big time enjoyed themselves as well.

Excessive financial regulation leads to people working to get around the system and avoid the regulation, and by doing so working in grey and even black markets. You can look at places like Russia and China to see what happens when there is excessive attempts to control financial markets.

Anonymous Coward says:

Re: Re: Re: breaking down borders

“Almost every American works in the same way.”
– Wrong

“The housing crash was built on people taking bigger and bigger loans based not on the actual values of their homes but speculative valuations of what they might be worth”
– Not entirely correct.

“Who got rich off of it? Not just the banks – the American citizens who lived it up big time enjoyed themselves as well.”
– Other members of the 1% profited, what’s the point?

“Excessive financial regulation leads to people working to get around the system and avoid the regulation”
– Any and all regulation is treated in this manner.

“You can look at places like Russia and China to see what happens when there is excessive attempts to control financial markets.”
– So they should be allowed to do whatever they want because they will do so anyway – brilliant!

John Fenderson (profile) says:

Re: Re: Re: breaking down borders

The problems that led up to the housing crash were a direct result of the deregulation of the financial industries, but you’re suggesting that further deregulation is a good thing to do? My mind is boggling.

“Who got rich off of it? Not just the banks – the American citizens who lived it up big time enjoyed themselves as well.”

Who are these American citizens who got rich off of this? If you exclude the already wealthy ones, I think the number is very near zero.

GEMont (profile) says:

Re: Re: Re: breaking down borders

“Who got rich off of it? Not just the banks – the American citizens who lived it up big time enjoyed themselves as well.”

Well, I was going to post a comment explaining that Whatever is a paid Shill and not an unpaid Troll, but I think that after pulling this amazingly dumb comment out of his ass, Whatever has just ended his run in this forum and quite possibly lost his job at the same time. Time for a new handle and profile otherwise…

…if only all the Shills were as stupid as this one…

GEMont (profile) says:

Re: breaking down borders

So, I take it that you were living in a shoe box on Saturn for the last ten-twenty years, otherwise, you might have noticed that these so-called “trade negotiations” are not at all about “liberalizing rules and opening borders”, or about removing “restrictive, non-compatible financial laws”.

This is not the first of its kind and we have a whole string of these fake treaties to look back on now and the things you listed were not accomplished by any of them although they all claimed these same goals as their purpose.

Yet here we are once again, apparently still trying to accomplish these same things via secret “trade negotiations”.

If these “trade negotiations” were actually about accomplishing those things you listed, they would be utterly open and transparent because nearly everyone would approve of them and there would be no reason at all to hide the treaty from the public – not only during its creation but for years after as well.

The only ones who would disagree with the accomplishment of those goals, are the very people currently demanding the trade negotiations be kept secret.

They can get away with the standard lie; “secret negotiations are necessary because the stupid public does not know what’s good for it” once or twice, but having to keep all of these treaties secret for years after they’re been finalized and put into effect, really puts the lie to the whole shell game.

But I’ sure you already knew all that didn’t you. 🙂

Anonymous Coward says:

Re: breaking down borders

Being in favor of some laws doesn’t mean being in favor of any possible laws. I’m in favor of laws that prohibit murder. I’m not in favor of laws that prohibit me from drinking water.

I’m in favor of laws requiring financial transparency and prohibiting and deterring financial fraud. I’m not in favor of laws designed to reduce competition and harm consumers. See the difference?

Anonymous Coward says:

Re: Re:

simple, they only have to succeed once, we have have to succeed every single time. That is why they try over and over. They count that eventually people will be distracted long enough that one of their treaties passes and then it is too late for us.

The only solution is, that international treaties can not be negotiated in secret, AT ALL, and to ratify they have to make a referendum in every involved country. any treaty negotiated in secret must be declared null and void.

kishika (user link) says:

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The beauty of flower is the wonder of nature. It makes our life bright and beautiful. There are lots of importance and significance of it in our daily life. One of the best is to deliver the message of heart to others. Send Flowers to Malaysia at right price through any online shopping store and express your best love and affection. Malaysia Florist is always ready at the service of its customers.

GEMont (profile) says:

Re: History

Oh indeed they will eventually fail.

And a peasant rebellion is not even a slight necessity to that failure.

They are parasites and the nation they infest will become less and less healthy as they drain its vitality in ever escalating quantities. For parasites, the final death of the host is nothing more than a cue to exodus – in search of a new host.

Their logic is impeccable.

By the time they fail, they will have stolen enough capital to buy their way into any other country on earth…. where they will immediately set out to do the same thing all over again to that nation.

These rats do not plan to go down with the any ship.

I believe this scenario has been repeated in almost every dead civilization on earth. But because we let these same people write history, we never catch on to the pattern.

Anon E. Mous (profile) says:

The last things financial institutions need is deregulation.

Last time The U.S.Government let the Financial institutions in the U.S. do with less regulations we had a mortgage crisis and the banks needed a bailout and we will be paying for years thru taxes.

The Financial sector went hog wild last time and got themselves into all kinds of crap, do we really need a round two? Hell even Allan Greenspan admitted he screwed up.

If you put more power in the financial sectors hands with less oversight we will have a do over, you can bet on it. Because all they are concerned with is the profits they can make now, and they worry about the “what if’s” when they happen.

I would like to think the U.S. Government learned something from the last time, but apparently not

nasch (profile) says:

Re: Re:

I would like to think the U.S. Government learned something from the last time, but apparently not

You can bet the banks learned from it, though. Bad risks are picked up by the government even if not guaranteed ahead of time, big banks are allowed to be huge and yet generally aren’t allowed to fail (only one did in the crash), and nobody goes to jail. What great lessons for our financial sector. I can’t imagine what could go wrong (again) there.

eroticreader says:

this agreement is bad juju

What scares me even more about this agreement is that it allows corporations to store your PERSONAL data offshore. This provision would open another back door for the NSA/GCHQ/Five-eyes to snoop in on. IANAL, but if I am not mistaken, American case-law suggests that any data that crosses the border, no matter how personal, can be legally wiretapped without a warrant.

Anonymous Coward says:

Based upon past experience, it has been decided that financial deregulation is a good idea and further deregulation in that sector is in order. This assessment has been brought to you by the banksters responsible for multiple worldwide financial meltdowns which were rewarded by taxpayer funded bailouts. It’s a good gig if you can get one.

This is what happens when you put children in charge of the cookie jar – all the cookies are gone.

Zonker says:

Re: Re:

Bailouts that mostly went to pay executive bonuses so that those responsible for the financial meltdown wouldn’t have to forgo their luxuries while the taxpayers lost their investment in overpriced homes (pumped up for profit by Wall Street themselves), foreclosed on simply because the house is now valued less than the mortgage, and now have to pay hyper-inflated rent payments to their new landlords in an overcrowded rental market every month or go homeless.

Anonymous Coward says:

Those who ignore history are doomed to repeat it. The money sector has only one characteristic: GREED! They care not for the fate of the world as long as their personal coffers are filled continuously. This has led to financial crisis after crisis after major crisis. The real problem is that they are financing the legislative process and get what they want.

This whole process will lead to a global financial crisis that will make all previous crashes look like a Sunday picnic. It will end in a total global war just like the ’29 crash led to WWII, only this time there won’t be much left anywhere. The mountains of Montana, Idaho, and Alberta are looking better and better.

GEMont (profile) says:

Re: Re:

If you’re thinking about a nuclear war bringing about the end of civilization after such a crash, you can forget about it.

Nuclear War” was voluntarily outlawed among the crooks in power world-wide right after the Nagasaki and Hiroshima experiments, because it makes the money burn up, the gold, oil and soil radioactive, and the women and children un-rape-able. You simply cannot occupy and exploit the enemy’s holdings after you nuke his ass into the twilight zone.

That’s why they invented the Neutron Bomb and the Vapor Bomb, or whatever they now call the new chemical cloud ignition bombs.

War is the second best financial scam ever invented by the wealthy, right after phony trade negotiations that actually rewrite the laws of the land in order to turn certain extremely lucrative crimes into new business models for the rich members of the Ownership Society to participate in.

But nukes take all the fun and profit out of the enterprise.

Anonymous Coward says:

Re: Re: Re:

You don’t get it. It’s not the big guys, in the control of the financial sector that will be slinging nukes around. They (we) supposedly know better.

No, it’s our extreme radical friends on the middle east that will do it with suitcase bombs. Japan, alone, has over 250KG of plutonium missing. It only takes 8KG for one bomb.

World wide, the amount of missing, unaccountable, fissile material is staggering. When the time comes, I doubt the fruitcakes in this world will have much problem laying hands on the stuff. WE, all of us in the “civilized world” will be the victims.

GEMont (profile) says:

Re: Re: Re: Re:

Doctor Strangelove Scenario.

Excellent material for a box office hit movie, but in the real world, there are very few “fanatics” in positions of power.

The real “fanatics” – lunatics and brain damaged minions – are used up rather quickly by the men who con them into such foolishness as suicide bombing.

However, the leaders of every supposed “terrorist” group ever formed, are in it for the money and the power over others, not because of some belief in an invisible entity and whatever reward it might promise.

You’ve fallen for the government’s best gimmick since the cold war – the fanatical-terrorist-under-the-bed scare.

This is the manufactured scenario they want you to swallow, the precise scenario that allows them to use every means at their disposal to spy on everyone alive, to use the constitution as ass-wipe, to use extraordinary rendition and torture on its own citizens – to ignore the very laws they swore to uphold.

The Boogey Man Terrorist is a fiction created by the likes of Donkey-Dick Cheney and Karl – the Iceman – Rove, to replace the old bogeyman – the Russians and Nuclear War.

Its known as the “Look over there” gimmick.

Its the same game with a new name.

The men in power do everything for money and power over others – control – and never do anything that might lower their bank account amount.

Most Hollywood productions are basically propaganda, designed to reinforce whatever bogey-man fantasy the government happens to be pushing at the moment, or as a means of rewriting public history to protect the guilty.

All of that missing fissionable material is worth a fortune and the bad guys are simply trading it back and forth and making it more and more expensive – thus more valuable – like they do with any lucrative black market commodity.

Hell the Russians lost a few hundred fully intact nukes after the CIA and the Italian and Russian Popes successfully sabotaged the Russian control system and the Russian MAFIA took over and sold them as fast as they could find buyers.

Why make your own when you can just buy them already armed and ready.

There are likely 100,000 nukes sitting around in warehouses owned by various asshole governments, such as the USA and Britain, but since the Nagasaki and Hiroshima experiments proved that the use of nukes was detrimental to the bottom line, nobody has dropped one on any gold mines anywhere and they never will.

Hell, most of what has happened since then is about attempts by the big powers to bring back conventional warfare, cuz they all know that nukes take all the fun and profit out of a good war.

As much as I love a good movie badguy whose only desire is to nuke a city and then threaten the rest of the world with a similar fate if they don’t pay the ransom demands, or a crazy madman bad-guy who only wants to see everything burn, I do not see any of that here in the real world at all.

Hollywood bad-guys will also go to any length to confront their victim for a brag session as well, but in the real world, the bad guys never admit their guilt, even to their soon to be blown-up, suffocated, strangled, buzz-sawed, or cliff-dropped victims. The purpose of most of these movies is to insure that you will never recognise the real bad guys and it obviously works very well.

GEMont (profile) says:

What else could be expected?

“Time for the trials for crimes against mankind, not a banker alive that shouldn’t hang for their crimes.”

But that’s the whole point. Its why these “treaty negotiations” have to remain secret.

The idea is really simple. If the law supports your business model, then its not illegal and therefore no crime has been committed and no charges are pending.

These secret treaties are simply a new method of forcing nations to comply with new business models – by making them remove regulations that would prevent businesses from operating in a manner that would otherwise be illegal.

Deregulation simply removes the laws that used to make certain activities illegal, turning these activities into business models.

That’s how the banks stole thirty trillion dollars from the US taxpayers – by simply having lawmakers remove troublesome regulations from the books, so the banks could once again cheat, steal and lie, legally.

There can be no crimes against humanity when there are no laws that class such actions as crimes. Pretty slick eh!

MikeW_CA (profile) says:

Can secret law even be legal?

“keep it secret not just during the negotiations but for five years after the TISA enters into force.”

Any lawyers on here? How can it even be legal or constitutional to pass this agreement into law while keeping it secret? That just seems crazy to me. Can we have secret law in the US? Maybe secret law is allowed in some of the potential signatory countries, but it seems unlikely that it would be in nominally “democratic” ones.

How can it even be possible to contemplate a project like this?

Anonymous Coward says:

Re: Can secret law even be legal?

You’ve been asleep for a long time, haven’t you, Rip? Look up FISA, NSA surveillance, Secret FISA rulings. We’ve got it right here in the good ‘ol US of A. And according to the Supremes (I think) it’s LEGAL – either that or they won’t touch it, which amounts to the same thing.

MikeW_CA (profile) says:

Re: Re: Can secret law even be legal?

Right. Yet this would be different in that even the legislation itself would be secret. I don’t doubt that government can keep secrets. This seems to differ from the TPP. In the case of that agreement, the negotiations are secret, but I thought that the agreement itself would be made public before being rammed through Congress. In this case, Congress would be saying “we hereby agree to certain things which are secret, and give those force of law by our approving them as a treaty.” I agree that secret FISA rulings are abhorrent, as are secret legal memos authorizing torture, surveillance, or whatever.
This is a new bend down the slippery slope, in my opinion.

GEMont (profile) says:

Re: Can secret law even be legal?

If its a law, then its legal.
Killing people in cold blood is legal when the law says it is.

All you need is Two Sets of Laws.

One set for the peasants, to keep them poor and desperate enough to work their life away so that the rich can get richer from their labor.

A second – secret – set for the wealthy in the Ownership Society, to allow them to utilize the peasants and any other available resources in any manner that will generate profits.

Welcome to the real New World Order.

It all about The Law and which side of the money equation you’re on.

Anonymous Coward says:

Re: Re: Can secret law even be legal?

My read on this is that what they want kept secret for five years isn’t the final treaty, but all the documents and drafts that led up to the treaty.

Actually no. They quite often try to keep the text of the final treaty itself secret from the public – see NAFTA.

You see, all of these new “treaties”, are actually scams.

While the negotiation documents might indeed expose the double dealing and criminal intent of most of the negotiators, the actual text of the final draft would still allow people to see how they have been sold down the river so that certain financial institutions, industries and individuals can profit hugely at their expense.

The period of secrecy of the final text simply allows the perps to get all their ducks in a row before the inevitable public outcry begins.

Even a single year under this kind of secret international trade law-set allows these perps to steal billions of dollars, so the longer they can keep the people from knowing what has been done, the more capital they can aquire.

That is the real goal. Its just the establishment of a new unregulated business model and the secrecy period of the final text is simply the length of the Business Plan Period.

Once the text of the plan is exposed and the public begins demanding that these new regulations be removed, or that old regulations be put back in place, it becomes necessary to build another new business plan, (or scam), and another secret trade negotiations round begins, although, in many cases, the new laws that are established in this fashion prove extremely difficult to overturn regardless of how awful they are.

The final text of the current phony trade negotiations must be kept secret because their intent is always criminal and the public must be kept in the dark long enough to allow the scam to work.

You should remember that the only difference between organized crime and normal corporate business, is that the normal corporations use lawyers and politicians to allow them to steal and cheat and lie, whereas organized crime uses lawyers, politicians and guns.

Seegras (profile) says:

Re: Can secret law even be legal?

Yes, secret laws can be legal. In the same sense that a tyrant (in the aristotlean sense: “one who rules without law”) can legally do everything.

It’s a question of a) your form of governance and b) the underlying principles of that.

The underlying principle is typically the “Rechtsstaat”: Basically, this codifies things like “due process”, that everyone has to follow the law, and consequently all laws must be made public. The US Constitution and the Bill of Rights define an implementation of such a “rechtsstaat”.

How you define how laws are made is not covered by this principle. You can have a monarchy that is a rechtsstaat, although this isn’t a prerequisite.

However, with some forms of governance, it is. Namely with all those that involve the public. Republics, democracies and such. Because, without it, the public can’t be sure that what they decide is actually done at all. They can’t be sure whether somebody decides to ignore your votes, they can’t be sure somebody would decide to throw people in jail that might vote against them and so on.

So, by allowing secret laws, you can’t be a democracy any more. Neither can you by ignoring due process. Yes, a democracy can actually decide to abolish the rechtsstaat, but then, it abolishes the democracy itself.

Since the US actually did that (in violation of their own Constitution), it is neither a rechtsstaat nor a democracy any more, so yes, the law in the US can be totally arbitrary and even secret, “legally”, within its own frame of reference.

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