The Atrocity Archives

The Atrocity Archives is the first volume in Charles Stross’s Laundry Files series. It consists of the novella “The Atrocity Archive” and the short story “The Concrete Jungle.” The premise is that not only are Lovecraftian horrors and other things that go bump in the night real, but they live way down at the bottom of the Mandelbrot set and may be communicated with and/or invoked by computation. The main character is an operative in the British agency known as “The Laundry,” and was drafted in to the agency when he inadvertently discovered the means of invoking an Egyptian god as part of his dissertation research. Many people wind up in the agency in a similar means. Whenever someone stumbles on this sort of knowledge, the appropriate agencies make an offer: work for us, or never publish anything ever again. The name of one course offered to employees of the Laundry is “Computational Demonology.”

You get the idea.

The stories raise several issues for our consideration. First, whether it is illegal to invoke the Elder Gods or other eldritch abominations. And second, whether it is legal for there to be secret laws.

I. Witchcraft and related offenses

The basic question here is whether it is actually illegal to attempt to invoke Cthulhu or whatever. The closest we likely come here in terms of real law is probably witchcraft. Witchcraft actually was a crime at the common law. But the Witchcraft Act of 1735 reflected the growing opinion that such things were rather. . . embarrassing in a modern culture. The Act repealed previous Witchcraft Acts (dating from 1542, 1562, 1563, and 1604) and prohibited the prosecution of anyone for witchcraft or sorcery. Instead, the 1735 Act made it a misdemeanor to

. . .pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration, or undertake to tell Fortunes, or pretend, from his or her Skill or Knowledge in any occult or crafty Science, to discover where or in what manner any Goods or Chattels, supposed to have been stolen or lost, may be found. . .

So it was no longer illegal to be a witch, but it was illegal to hold one’s self out as one, particularly in connection with the provision of particular services. So no dowsing. But invoking Nyarlathotep? Go nuts. Blackstone notes in his Commentaries that witchcraft had fallen out of favor as a prosecutable crime even before the 1735 Act and viewed this as a beneficial change.

More particularly for our purposes, American courts have long disfavored prosecutions for or charges of witchcraft, though a crime at the common law, as being absurd. As the Supreme Court of Judicature of New Hampshire put it in 1819, “if the common law of England concerning interest should be adopted, we must hold void all contracts for any quantity of interest, however small and reasonable. But, in this enlightened age, such a rule could no more be tolerated than the absurd principles of the common law concerning witchcraft and heresy.” Houghton v. Page, 2 N.H. 42, 44 (1819). There do not appear to have been any attempts in American history to make witchcraft a crime by statute. Indeed, an attempt to do so might well result in a challenge on First Amendment grounds!

But what if there really were things that went bump in the night? It’s likely that the government would have other means at its disposal for dealing with this rather than attempting to resurrect prosecutions for witchcraft. One of the main concerns of the Laundry and related agencies is keeping knowledge of the occult out of the public mind. Anyone who does stumble upon real knowledge tends to be recruited pretty quickly. So passing a law against unlicensed summoning would draw unwanted attention to the subject. Instead, nations would probably rely on national security laws. The President has broad authority to classify information on national security grounds. If there really were an otherworldly threat, the existence of the threat would probably justify action on that basis without the need to reference the specific nature of the threat in additional statutes.

II. Secret Laws

Another feature of the stories is section three of the “Official Secrets Act of 1916.” The story is that the fictional Act of 1916 contains two sections which are public, and a third section which is secret, i.e., under the terms of the Act, it’s illegal to know about Section Three without proper authorization. Can this sort of thing happen?

Well first of all, not only is there no “Section Three,” but there isn’t even an Official Secrets Act of 1916. Not even Sections One and Two, so we’re dealing with a fictional law.  There are several other Official Secrets Acts in the United Kingdom, just not one from 1916.

In the United States it’s probably unconstitutional for the text of any laws passed by Congress and signed by the President not to be a matter of public record. Each chamber of Congress is permitted to engage in secret proceedings. U.S. Const. Art. I, sec. 5, cl. 3. Both chambers have adopted rules for the conduct of secret sessions. But neither chamber contains provisions for a bill to be proposed, debated, passed, signed, and enacted in secret.  Further, even if Congress pulled a fast one and changed its rules in secret to permit such a thing, the first time any of these laws appeared in court, the courts would pitch an absolute fit. Passing secret laws and attempting to enforce them is just about as offensive to concepts of due process as it’s possible to conceive. So the first time any agency took any action justified solely on the basis of a secret statute, it’s game over.

But again, there doesn’t seem to be much of a need for this. Congress can authorize some pretty murky stuff, and indeed, Congress was quite annoyed about the NSA and other similar “black” agencies for quite some time. So it’s likely that the government would probably try to deal with this sort of thing using normal secrecy channels rather than trying to make up new ones.

We assume that there would be a similar result under UK law.

III. Conclusion

The legal framework described in “The Atrocity Archives” probably wouldn’t work. Certainly not in the US, and probably not in the UK either. But it doesn’t really have to. Both governments are pretty good at initiating and conducting black ops of various sorts. They don’t need any extra statutes passed to do that.

35 Responses to The Atrocity Archives

  1. Didn’t the NSA keep public key cryptography under wraps by way of patents in the elder days? Given that software is explicitly patentable, that would seem a given. And just why is software patentable nowadays?

    The other tack is to treat it the same as nuclear weapons and secrets, since they can readily be considered weapons of mass destruction.

    • This is a contradiction in terms. Patents are public. The word itself means “open” and is derived from litterae patentes or “open letters.” Now, some patent applications in the US are kept secret on national security grounds (e.g. patents related to nuclear weapons), but they are held in limbo until the secrecy order is lifted. Until that happens they remain applications and do not issue as patents.

      But in any case, while certain public key cryptography methods were patented, the patents were not held by the US government. The RSA patent, for example, was assigned to MIT and exclusively liensed to RSA Security, Inc.

      • I believe the common understanding amongst computer security professionals is that public key cryptography was known to the NSA when Rivest started publishing… but there were no patents specifically because they (the NSA) had kept their discoveries secret. (The idea being that when the NSA developed it, the only purpose was thought to be in diplomatic ciphering, while commercial applications had appeared by the time public-key crypography was published. There is a book, “crypto”, that describes the early days of public key cryptography at RSA security.

  2. Wouldn’t the summoning of a Tentacled Horror be covered under the statutes prohibiting the keeping of dangerous animals? Or of laws limiting the importation of the same?

    As for secrecy, perhaps there is a secret part of the Constitution that authorizes secret laws, and the system works just fine. (No, I don’t really consider this a possibility, as it’s just about impossible to maintain operational security over large groups for an indefinite time. People know what the government was up to in Los Alamos back in 1945, for example. Some fictional secret organizations do keep secrecy… the only reason the security was maintained in Men in Black was because they had the neuralyzer… but most confront this issue by firmly dodging it.)

  3. What about responsibility for attempting to summon something you can reasonably expect to result in death, destruction, and general mayhem? Public endangerment? 300+ million cases of assault?

    • Hard to say. The automobile has a carnage total similar to what you describe, and firearms.

      • Yes, but generally guns and cars are regulated and it is understood that those contain the potential for destruction, not the guarantee of it. Things like Cthulhu and Nyarlathotep generally have a reputation for being inherently destructive and negative, with the strong possibility of driving people insane just by being there.

        Heck, you might be able to get someone on treason charges. It’s a bit murky with Nyarlathotep but Cthulhu seems to be the head of a declared (though unrecognized in the 21st century) state that at one point at least held territory, had foreign policy and waged wars with other states (see the Elder Things).

        Then there’s the fact that the games usually depict the rituals to summon them as involving swearing allegiance to these entities and inflicting bodily harm. Considering that they act as agents of these entities after swearing allegiance that probably makes them (if they are American citizens) citizens who are actively working for other states. If they aren’t registered lobbyists then that probably means that they’re breaking American laws. The second is more simple. You can’t go around kidnapping, maiming and murdering people, no matter what kind of ritual it is.

        Lastly a minor note. Lovecraft went back and forth but generally ‘magic’ and ‘witchcraft’ in his stories were more proper understanding of the universe and its laws allowing humans access to superhuman powers (see The Dreams in the Witch House). Therefore I’d say that what people do in Lovecraftian tales is not really witchcraft but rather an unusual science and certainly not what the courts and legislators had in mind when they were handling witchcraft.

      • Cars have an annual *total* carnage on that order – while a Gibbering Horror potentially has the capability for *singular* carnage on that order.

        You’re comparing cars to nuclear weapons, which is isn’t very useful at all. (More on that anon.)

      • James Pollock

        “You’re comparing cars to nuclear weapons, which is isn’t very useful at all.”
        Yeah. Cars have killed WAY more people than nuclear weapons have. So Mr. Olds has way more blood on HIS hands than Mr. Teller.

  4. Christopher L. Bennett

    I just find it sad that in 1735 England they were enlightened enough to recognize that f0rtune-telling was a fraud, but in present-day America, so-called psychics get their own TV shows and phone hotlines.

    • Fortune-tellers got the 1735 equivalent of their own shows back then. The law recognised it as a fraud; doesn’t mean all the people did. (The law probably recognises fortune-telling as a fraud now, if it were ever relevant to a case.)

      • Which is why all of the ‘Psychic’ hotline advertisements have a disclaimer line, “For entertainment purposes only.”

  5. It’s obvious: Summoning Cthulhu is aiding and abetting illegal immigration. Where’s ICE when you need them?

  6. Terry Washington

    Whether it is illegal to summon up Elder Gods (or if it should be illegal) I do not know- but it is most certainly exceedingly unwise in moral terms- such entities almost INVARIABLY demand a price for being so summoned- and said price is almost more than the average person is prepared to pay(usually a human sacrifice, no infrequently a friend or family member)!

    • Morality is an interesting thing in law. In the U.S. certain religious groups are allowed to taunt dead soldiers at their funerals because the courts feel that freedom of speech is essential in this country, which sets the morality of respecting the dead and their families against the morality of voicing your opinion without fear or reprisal. In a case in California a man was found not guilty of rape because he was impersonating a woman’s boyfriend and not her husband, a case where a court had to follow the law even though it was clear that the law was antiquated and would allow a rapist to go free.

      Anyway, as I mentioned above, doing the kinds of things you usually have to for the ritual to work aren’t just a matter for whether or not they’re moral, but definitely illegal. No matter how you spin it, first degree murder is still first degree murder.

    • In Stross’s universe the first thing they do is usually kill their summoner by overriding his brain with their superior alien intellect, then eating his soul and using the corpse as a toolkit. So at that point the legal penalties are a little irrelevant. Also hard to enforce.

  7. The UK situation is very different, and even if it came to the same answer, the logic used to get there would be interesting.

    In UK constitutional theory, Parliament is sovereign, which means it has the power to make any law it pleases, including constitutional changes. Courts have sometimes found ways of interpreting statues meant illiberally in accordance with the principled of justice, but they do not have a general power of judicial review of statutes. Legislation is by default subject to the ECHR and HRA at the moment, but neither of these provisions are entrenched and can be derogated from anyway.

    In spite of this I think an English court would find some new power or old precedent were this to actually be attempted. Well, given the stories I think a well-informed court would find it to be a wholly proportional response to the threat of NIGHTMARE GREEN, before then gibbering and asking to have its memory of the hearing erased.

    • It seems likely that there’re one or two senior judges who actually are briefed on NIGHTMARE GREEN, or at least on one of the specific sub-threats, in order to handle this stuff. But possibly not, given the Laundry’s recruit-it-or-shoot-it attitude.

      Involuntarily binding people’s souls into non-disclosure spells is definitely in violation of the HRA, but how the hell are you going to launch the appeal? It’s a self-protecting crime.

      • Elizabeth Creegan

        The second book, The Jennifer Morgue, has a reference to a secret Supreme Court ruling that citizenship rights are only for humans. Given the context, it pretty much means that nonhuman sentients have no rights, not even protection from cruelty the way animals do. (“For failure, the punishment can be special rendition to jurisdictions where the very concept of pain is considered a fascinating research topic by the natives”.)

      • I’m pretty sure the basics of that would go against multiple Supreme Court (U.S. that is) rulings, the basics of the constitution and actions taken by Congress. Even if you rule that something isn’t a human and/or a citizen, if you’re admitting that it feels pain then it isn’t just an object.

        In any case I think law is where these stories are at their weakest. You can’t really have a case brought before the Supreme Court if the entire thing is secret and the Supreme Court only rules on official cases brought before it (this was made very clear at the start of the 19th century).

  8. For the first part, as to whether or not it’s legal to summon or own the means of summoning Gibbering Horrors from beyond, I suspect the laws concerning private ownership of nuclear material to be a better fit than witchcraft.

    As to the second, secret laws… if the issue never appears in open court, then the potential reactions of the Court are irrelevant. (See Guantanamo and various other such ‘legalities’ post 9/11.)

    • Sooner or later it would come out. It’s hard enough to make sure that secret organizations and projects stay secret in a closed society but an open one like the U.S. or U.K.?

      • Well, sooner or later it *might* come out… Or it might not. Because of the amount of stuff that has come out, we comfort ourselves with the thought that everything will come out – without a shred of evidence of the truth of that assumption. (And the mountains of stuff that keeps coming out bearing witness to the probability that is *isn’t* true. But we have no way to measure…)

        But either way, that it “may eventually” come out is cold comfort indeed for those currently effected.

      • It’s less difficult to enforce secrecy when the very laws you use to promote the secret have a mystical component that either compels the subject to keep the secret, or allows a gibbering horror to devour the subject entirely when they attempt to reveal it. . .

    • Good point; the books expressly make it clear that the nuclear non-proliferation treaty is matched by several secret international Elder God non-proliferation treaties.

      Given that the required equipment to summon Gibbering Horrors is “a laptop and undergraduate-level maths, plus possibly a stick of chalk”, enforcing a law against private ownership of the material could be kind of tricky. And once it’s been used, it’s a little late.

  9. The only whack at witchcraft by the SCOTUS (aside from recent cases on the Wiccan religion) readily turned up by Google Scholar is Hotema v US, where a criminal defendant’s belief in witches was considered related to an insanity defense.

    As to the question of secret laws, I wonder a secret law might be effectively allowed if the open part of the act included “with such exceptions” jurisdiction stripping components, saying that (except for primary jurisdiction) the judicial branch was not allowed to hear any case nor appeal on any of the act. While the courts clearly would pitch a fit, it would seem to be something where the courts might have to concede that Congress had rendered the matter a non-justiciable political question. Contrarwise, it would seem likely to be something to overcome the court’s reluctance to open politics, perhaps giving a ruling including an express political call to get rid of the law and/or any congresscritter who’d voted for it. (Though Scalia might dissent….)

    More politically likely would be a law requiring any such cases be heard by a dedicated FISA-like court (and the SCOTUS as the direct and only appeal), with super-FISA secrecy requirements dictated via the “under such regulations” clause.

  10. ” . . .first time any of these laws appeared in court, the courts would pitch an absolute fit. . .”

    If I’m not mistaken – the law requiring you to show id when flying is secret. Well, the text of the law is, not the existence of the law itself.

    • Not quite. It’s a regulation that compels airlines to ask passengers for identification. The TSA has declined to make the regulation public, classifying it “sensitive security information.” It’s possible the airlines are privy to more details, but the public is not. However, the public does know how to comply with the regulation (present ID at the check-in counter) and the result of non-compliance (you can’t fly, but there’s no punishment).

      It’s a somewhat subtle argument, but I recommend reading the Gilmore v. Gonzales case. 435 F. 3d 1125 (9th Cir. 2006). I don’t completely agree with the court’s decision, but I think you can see the distinction between that law (a non-penal regulation that the public is aware of and can comply with) and the fictional Official Secrets Act (a penal law that the public is not aware of and does not know how to comply with; indeed even knowing of the law’s existence or how to comply with it would probably violate it).

    • James has it, I think a broader discussion might help tease some of this out. It may only be of interest to lawyers, but there’s a big conceptual, connotative difference between “laws” and “regulations”.

      There are are four basic species of law. In descending order of precedence, they are: constitutions, statutes, case law, and regulations. Constitutional law represents bedrock, axiomatic features of the legal system. These are very difficult to change and are created by some constitutional process. Statutes are laws passed by legislatures and signed by executives. What a statute can do is restrained only by the constitution. Case law is the body of law created by the courts in our common law system. This is not to be confused with judicial interpretation of constitutional or statutory law, which is effectively the authoritative statement of what those kinds of law mean when applied. Here we’re talking about substantive (and procedural) law created solely by the courts. For instance, most criminal and tort law were, at one time, a matter of common law. They were not recorded in any statute. Crimes and torts were defined essentially by precedent. Nowadays, legislatures have replaced these common law doctrines with statutes. So case law is constrained both by the constitution and by statute, i.e., if the legislature disagrees with a decision of law by a court (or just decides it wants to take a hand), it can pass a statute to change that law. At the very bottom are regulations created by executive agencies as authorized by statute. A specific agency is authorized to make rules to deal with a specific issue. These are constrained by constitution, statute, and case law.

      But the term “laws” most commonly refers to statutes. I think it’s probably unconstitutional for there to be a secret statute. As mentioned above, statutes are constrained by constitutions, so if the constitution doesn’t provide for secret laws, it would be illegal for there to be any. And as I can’t see any US court interpreting the Constitution to permit such, I think it’s right out.

      Regulations, on the other hand, can be secret, provided the statute which authorizes the regulation contemplates such. They would have to be pretty focused in their application to be constitutional, but this is why military agencies and the TSA don’t necessarily have to tell you what they’re about. They’re authorized by a public statute to do certain things in secret.

      But this also ties back into what James was getting at. On one hand, the TSA represents a national security regulatory regime of which the public is aware, which isn’t that intrusive unless you engage in certain well-defined activities, and which the public basically knows how to navigate. On the other hand we’ve got an agency which disappears people on a semi-regular basis, breaks in to private buildings and sabotages data, and actively suppresses the development of knowledge in particular directions, all authorized by a statute it is illegal to even know exists. The former is a bit unpleasant, but it can fit within the bounds of a democratic society. The latter can’t.

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