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August 27, 2013

Why CREW Is Suing DOJ to Force Disclosure of OLC Opinions

By Anne Weismann

Department of JusticeChances are that behind nearly every controversial policy and program of the last decade there is an opinion from the Department of Justice’s Office of Legal Counsel blessing whatever the administration wanted to do.  These legal opinions have an enormous impact, as they represent the authoritative position of executive branch on issues of law — what a law means, and what conduct it permits or precludes.  Indeed, they are so powerful the government will not prosecute government employees who rely on OLC opinions, even if their conduct is subsequently determined illegal.  In essence, OLC opinions form a body of law that binds all federal agencies.

And that’s where the problem comes in.  OLC has refused to make public some of its most significant and controversial opinions.  What did OLC conclude about the FBI’s surveillance program?  We don’t know; in the face of a FOIA request OLC has stood firm in its opposition to public disclosure.  What did OLC opine about the NSA’s surveillance programs and massive data collection efforts?  Again, we are in the dark because OLC insists the opinions are privileged and cannot be disclosed to the public.  To be sure, the administration has made some opinions available, such as the Bush-era OLC opinion blessing the legality of torturing foreign combatants.  But such disclosures are few and far between, and they happen as a matter of the administration’s discretion, not as a recognition of its legal obligations.

This is why today CREW filed a lawsuit against the Department of Justice, Attorney General Eric Holder, and Assistant Attorney General and OLC Virginia A. Seitz.  CREW seeks to compel DOJ to comply with its legal obligation to make public final OLC opinions.  Although there are other pending lawsuits that seek disclosure of individual OLC memos under the Freedom of Information Act, this is the first attempt at forcing DOJ and OLC to make all of its legal opinions public.

The lawsuit is based on an underused provision of the FOIA that predates the provisions requiring disclosure upon request and that requires all executive branch agencies to make available to the public, among other things, final opinions made in the adjudication of cases, and statements of policy and interpretation the agency has adopted.  OLC opinions fit squarely within these two categories of records.  When OLC generates opinions, it is acting pursuant to authority delegated from the attorney general to give advice on questions of law, and pursuant to an executive order charging OLC with resolving legal disputes between agencies.  OLC itself recognizes these opinions as final; an internal OLC memoranda characterizes its opinions as “effectively ... the final word on controlling law.”

Jack Goldsmith pointed out in his book The Terror Presidency, “[w]hen the executive branch acts outside the reach of courts ... it is both law interpreter and law enforcer, and runs the danger ... of interpreting the law opportunistically to serve its own ends.”  We already have seen this danger with the administration run amok as it carries out wide-sweeping surveillance programs that indiscriminately invade our privacy and violate our Fourth Amendment rights.  If there is a legal rationale for these actions, we have a right to see it and decide for ourselves whether the means justify the proclaimed end of protecting us against terrorism.

What differentiates countries like America from totalitarian regimes, among other things, is our adherence to a rule of law.  When that law is kept secret, our democracy is undermined and we as a nation are diminished.  Any true commitment to transparency must begin with one of the most basic building blocks of our society — the laws that bind us.  OLC opinions are part of those laws and must be made public.  That is why CREW is suing the Department of Justice.

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