Citizens for Responsibility and Ethics in Washington

A nonprofit organization has sued the United States Justice Department in order to force the release of legal opinions that have been used to justify a number of questionable policies, but which the Department has refused to release.

Citizens for Responsibility and Ethics in Washington (CREW), an organization that describes itself as being committed to “high-impact legal actions to target government officials who sacrifice common good to special interests,” filed a complaint in the US District Court for the District of Columbia.

The complaint challenges the Office of Legal Counsel, which has the authority to produce advice and opinions on questions of law when the President of the United States or heads of any of the departments in the Executive Branch need them. It requests that a “declaratory judgment” be issued to indicate that the refusal to make the opinions public is “arbitrary, capricious and contrary to law.” It also seeks an injunction that would direct the OLC and Justice Department to make all legal opinions by the OLC “available for public inspection and copying.”

The OLC, in recent years, has drafted opinions to justify the use of torture, rendition and the killing of US citizens abroad, who are allegedly involved or tied to terrorism.

“OLC’s practice of withholding from the public an unknown number of opinions it has rendered, including opinions on important topics of significant public interest, has resulted in the creation of a body of secret law that binds the executive branch,” according to CREW’s complaint.

A “presumption” that “significant opinions” are to be “available to the public” is supposed to exist, according to David Barron, Acting Assistant Attorney General of the OLC. However, “OLC routinely keeps its opinions secret and, despite specific requests, refuses to make them available to the public.”

As a result, “there is no publicly available figure of the exact number of opinions OLC has issued.”

The complaint recounts how CREW sent a letter on July 3rd to OLC Assistant Attorney General Virginia A. Seitz requesting that OLC immediately “make available for public inspection and copying all OLC opinions that are binding on the executive branch.” The organization explained that the failure of the OLC to comply had created a “body of secret law,” which “undermines our democratic system of government and conflicts” with the Justice Department’s “legal obligations.”

A letter from Deputy Assistant Attorney General John E. Bies sent on August 20, informed CREW the OLC opinions are considered “confidential, pre-decisional legal advice protected by privilege.” So, to the Justice Department, the opinions are not “final opinions” or “statements of policy and interpretations,” and do not have be released under the Freedom of Information Act.

CREW Executive Director Melanie Sloan said in a press release the “recent revelations regarding the National Security Agency” demonstrate the “increasing importance” of knowing what the “executive branch thinks it can and cannot do—and why.”

She also asked, “What is DOJ hiding? Why, exactly, shouldn’t Americans understand how the administration interprets the laws governing our nation? Far from the most transparent administration in history, the Obama Justice Department seems remarkably similar to the Bush Justice Department.”

Not releasing opinions protects the president from scrutiny, making it difficult to determine if the president is abusing authority or not. This enables officials, who wish to keep certain opinions from being seen by members of Congress. The opinions can also be used to shield officials from prosecution, which is another reason why they should all be public.

Such secrecy permits an abuse of the classification process. Consider, for example, the March 14, 2003, memo authored by John Yoo, who served as Deputy Assistant U.S. Attorney General in the Office of Legal Counsel under President George W. Bush.

J. William Leonard, former Information Security Oversight Office (ISOO) chief testified in a 2008 Senate Judiciary hearing on secret law that the memorandum was “purely a legal analysis” and not “operational in nature.” It should have never been classified. The memo did not properly contain the identity of the official who had classified the memo. It contained no instructions for declassification. It was shared with “some of the most senior legal officials in the Executive Branch, including the White House Counsel as well as the then Counsel to the Vice President.” The improper classification was never challenged, even though officials had an obligation. The classification of the memo was maintained as a “bureaucratic weapon to blunt potential opposition.”

The argument the Justice Department is employing to keep opinions secret gives the Obama administration the ability to engage in this same kind of improper but convenient conduct when relying upon memos that justify the “targeted killing” of alleged terrorists, whether they be citizens or not, away from any battlefield.

In the same hearing, former OLC Acting Assistant Attorney General Dawn E. Johnsen declared, “OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public—particularly when advising the executive branch that in essence it could act contrary to federal statutory constraints. For example, recall that it is only because of government leaks that the public first learned—years late—of the Bush Administration’s legal opinions and policies on extreme methods of interrogation (which concluded that the President need not comply with prohibitions on torture), the government’s domestic surveillance program (which operated outside the requirements of the Foreign Intelligence Surveillance Act), and the use of secret prisons overseas to detain and interrogate (even waterboard) suspected terrorists.”

What was “terribly wrong” under Bush remains “terribly wrong.” It is further compounded by the fact that Obama has expected the American people to regard his administration as one of the “most transparent” administrations ever, even as his administration abuses that distinction to protect the Executive Branch from being subject to warranted criticism.