OLC Memoranda: Does U.S. Secret Law Threaten Our Democracy?

Classified memo on deskOn Wednesday, March 13, 2013, Citizens for Responsibility and Ethics in Washington (CREW) and George Washington University Law School Professor and Lerner Family Associate Dean Alan Morrison will host a Sunshine Week event, “OLC Memoranda: Does U.S. Secret Law Threaten Our Democracy?”

Panelists will consider whether and when the government is justified in keeping memoranda authored by the Department of Justice’s Office of Legal Counsel (OLC) secret, and the repercussions a body of secret law present to a democracy.

The event will be from 10:30 a.m. until 12:30 p.m. at George Washington University Law School, Jacob Burns Moot Court Room, 2000 H Street, N.W., Washington, D.C.

The Honorable Sen. Ron Wyden (D-OR) will present opening remarks. Sen. Wyden, a senior member of the Senate Select Committee on Intelligence, has been an outspoken critic of the administration’s refusal to make public the rationale for its conclusion the government may lawfully kill certain Americans living abroad. As Sen. Wyden explained recently in a bipartisan letter to President Barack Obama, “It is vitally important ... for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards.”

Click here to read the letter to President Obama.

Sen. Wyden’s remarks will be followed by two panels. The first panel, moderated by CREW Chief Counsel Anne Weismann, will consist of Jameel Jaffer, Director of the ACLU’s Center for Democracy; David Sobel, Senior Counsel for the Electronic Frontier Foundation; and Charlie Savage, New York Times reporter and plaintiff in The New York Times Co. v. U.S. Dep’t of Justice, a lawsuit pending in the U.S. Court of Appeals for the Second Circuit challenging OLC’s refusal to release a memo justifying killing Americans abroad who are suspected of ties to Al-Qaeda or other terrorist groups.  Mr. Jaffer and Mr. Sobel, who are both involved in litigation seeking access to OLC memoranda under the Freedom of Information Act, will discuss the legal issues their lawsuits raise, as well as the broader policy implications of keeping secret memoranda justifying some of our most controversial policies. Mr. Savage will discuss news media interest in these memoranda and the harm of denying public access to the legal rationales behind controversial policies.

Click here to read the opinion of the U.S. District Court for the Southern District of New York.



The second panel, moderated by Professor Morrison, will consist of Louis Fisher, Scholar in Residence of The Constitution Project; Randolph Moss, current Chair of the Regulatory and Government Affairs Department of Wilmer Hale and former Assistant Attorney General for OLC under President Bill Clinton; and Bruce Fein, a constitutional scholar and former Associate Deputy Attorney General under President Ronald Reagan.

This panel will focus on the broad range of policies addressed by OLC memoranda, including extraordinary rendition, the use of torture on detainees, the killing of Americans abroad suspected of links to Al-Qaeda, the implications for our democracy when those memoranda are not made public, and solutions to secrecy outside of the litigation context.

Please join us for this timely and thought-provoking event.

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