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March 14, 2013

CREW Shines Sunlight on Secret OLC Memoranda

By CREW Staff

Sen. Ron Wyden (D-OR)On Wednesday morning, CREW and George Washington University Law School Professor Alan Morrison held a Sunshine Week event to discuss whether and when the government is justified in keeping secret opinions authored by the Office of Legal Counsel (OLC), such as those authorizing the killing of Americans abroad suspected of ties to terrorist groups.  

There was widespread agreement that by refusing to publicly release OLC memoranda, the U.S. government has effectively created a set of secret law that hurts democracy.

Sen. Ron Wyden (D-OR), who has spent the past two years pushing for the release of OLC memoranda, opened the discussion.  Among his insights: “the Congress and the American people need to know what the executive branch thinks the law and the Constitution allow them to do;”   “American laws shouldn’t be public only when the government thinks it’s convenient;” and “Every American has the right to know when their government believes it has the right to kill them.”  Sen. Wyden also said he has begun reading the OLC memos on drone strikes the Senate Select Committee on Intelligence received from the White House, and is working to make some of the information public.

Next, CREW Chief Counsel Anne Weismann moderated a panel of experts including Jameel Jaffer, Director of the ACLU’s Center for Democracy; David Sobel, Senior Counsel for the Electronic Frontier Foundation; and New York Times correspondent Charlie Savage.  In his discussion of the news media’s interest in public release of OLC opinions, Mr. Savage questioned the executive branch’s reliance on earlier secret OLC memoranda to justify later decisions to keep memos secret.  To illustrate his point, he held up a copy of a highly redacted OLC opinion received by the New York Times — and cited by a later memo — in which nearly the entire body of the document was blacked out.

Mr. Jaffer and Mr. Sobel, who are both involved in litigation seeking access to OLC memoranda under the Freedom of Information Act, discussed their lawsuits. Mr. Jaffer noted that while lawsuits are not always successful, “often the litigation is as useful in forcing the government to defend its withholdings as it is in forcing the government to disclose documents.”

The second panel, moderated by Professor Morrison, focused on the internal workings of OLC and whether its legal opinions should be publicly available — and with what limitations.  Constitutional scholar Bruce Fein said, “the consent of the governed can’t be given if the governed doesn’t know what their governors are doing.”  He argued that “transparency is inherently the rule and secrecy is the exception.”

Mr. Fein, along with constitutional scholar Louis Fisher and former Assistant Attorney General for OLC Randolph Moss, dismissed the notion that making OLC memos public might have a “chilling effect” on the quality of legal advice given to the president.  “I have never heard anyone insinuate that they would not give candid advice to the president because they worried about a leak out to the public,” said Mr. Fein.

Yesterday’s talk was just one step in the effort to push the executive branch to make OLC memos public.  CREW will continue working with Sen. Wyden, Professor Morrison, and all of the panelists on this important issue.

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