Secrecy News

Bush OLC Opinions on Wiretapping Still Under “Review”

Updated below

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration’s warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

“I just want to reiterate how important it is for the legal justifications for this program to be withdrawn,” said Sen. Feingold at a June 17, 2009 hearing of the Senate Judiciary Committee, referring to the warrantless wiretapping program.  “I am concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remain in effect.  And if you believe, as I think the President [Obama] has indicated in the past, that the program was illegal, they cannot stand.”

Attorney General Eric Holder told Sen. Feingold at that June 2009 hearing that he had asked the Office of Legal Counsel to review the opinions, and to release them publicly to the extent possible.  “It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.”

In an October 2009 response (pdf, at p. 11) to a follow-up question for the record, the Department of Justice told Sen. Feingold that “the review processes described in your question are still ongoing.”

In a March 2010 response (pdf, at p. 23) to the same question, DOJ said “The Department is still conducting its review…. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.”

Well, “What is the status of that review?  When will it be complete?” asked Sen. Feingold yet again, following an April 2010 hearing.

In a December 2010 response (pdf, at pp. 29-30) that has just been published, DOJ repeated that “The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review.” (at pp. 29-30)

But a review that continues indefinitely is practically indistinguishable from no review at all.  And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue.  All that remains is the Senator’s warning about the hazards of embracing “unsupportable claims of executive power.”

Update: On March 18, 2011 the Justice Department released a heavily redacted version of a May 2004 OLC opinion on warrantless surveillance in response to an ACLU FOIA lawsuit.

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