Leahy, Specter Press White House
For OLC Torture Documents
August 19, 2008) – Senate Judiciary Committee Chairman Patrick
Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) today
pressed the White House to respond to outstanding requests from
members of Congress for information about legal analysis and
advice related to detention and interrogation policies provided
to the administration by the Office of Legal Counsel (OLC).
The Judiciary Committee’s
jurisdiction includes oversight of the offices within the
Department of Justice, including OLC. Leahy, Specter and other
members of the Judiciary Committee have sought access to OLC
documents concerning the administration’s controversial
detention and interrogation policies. The Office of Legal
Counsel has provided memorandums, letters and legal advice to
agencies within the Executive Branch about interrogation
techniques, interpretations of the Geneva Conventions, and
liability concerns for interrogators, but the White House has
provided only a limited number of redacted, classified documents
to Congress. In a letter to White House Counsel Fred Fielding,
Leahy and Specter again pushed the White House to provide the
Committee with the requested documents.
“After more than five years of
requests, we have only recently received access to redacted
versions of OLC legal opinions related to the CIA’s
interrogation program,” Leahy and Specter wrote. “The failure
to provide other documents that we have sought repeatedly,
however, leaves us without basic facts that are essential to
this Committee’s ability to conduct its oversight
Leahy’s first request for such
documents dates back to June 2003. Additional requests were
made by Leahy, Specter, and other Committee members in May,
June, October, and December 2004, January 2005, November 2006,
October 2007, and most recently in July during an oversight
hearing with Attorney General Michael Mukasey.
“We have now reviewed the
classified OLC documents you have provided us,” Leahy and
Specter wrote. “The information redacted from these documents
leaves us unable to understand how statutes within this
Committee’s jurisdiction are being interpreted…We therefore
request unredacted versions of all of these documents.”
The full text of the letter
follows. A PDF is also available
August 19, 2008
Mr. Fred Fielding, Esq.
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Dear Mr. Fielding:
We write regarding numerous
outstanding requests for information and documents concerning
legal analysis and advice from the Department of Justice’s
Office of Legal Counsel related to the Administration’s
detention and interrogation policies. The Office of Legal
Counsel (“OLC”) plays a critical role within the Department of
Justice (“DOJ”). It is the office that provides legal advice to
the rest of the Executive Branch. The job of OLC is to provide
principled, neutral assessments of the law to guide the
Executive Branch and its opinions traditionally carry great
weight. This Committee has jurisdiction over OLC and has for
years raised concerns about the process and substance of the
work of that office.
To assist our oversight, Senator
Specter and I, and other members of this Committee have sought
on dozens of occasions to review legal advice from OLC on
significant and controversial administration policies. After
more than 5 years of requests, we have only recently received
access to redacted versions of OLC legal opinions related to the
CIA’s interrogation program. The failure to provide other
documents that we have sought repeatedly, however, leaves us
without basic facts that are essential to this Committee’s
ability to conduct its oversight responsibilities.
In fact, I have been stonewalled
even in my repeated request for something as simple as an index
of OLC opinions. On June 16, 2003, I sent then Attorney General
John Ashcroft a letter requesting an index of all memoranda and
opinions rendered by the OLC since January 2001. I reiterated
that request on May 12, 2004 and again directly to Attorney
General Mukasey at an oversight hearing this July. We have
never received this information. Nor were we ever provided with
an explanation as to why the information was withheld.
Examining the role of this Justice Department office in
authorizing controversial activities is squarely within the
oversight responsibilities of this Committee; in carrying out
that responsibility we are entitled, at the very least, to know
the subjects on which OLC has provided final legal advice. That
after more than five years this Committee has been refused even
this simple request is unacceptable.
Senator Specter and I, and other
Senators on this Committee, have asked repeatedly for OLC legal
advice concerning Administration practices. In addition to the
requests mentioned above, there were written requests for OLC
documents sent on June 15, 2004, October 29, 2004, December 21,
2004, January 4, 2005, November 16, 2006, and October 25, 2007.
Furthermore, you and I have had several discussions and I
received assurances from you that I would receive these
materials at the time the Committee proceeded to consider the
nomination of Attorney General Mukasey.
Therefore, we are requesting that,
no later than Friday, August 29, at 10:00 a.m., you provide this
(1) A comprehensive index of all
legal memoranda, letters, or opinions that were issued by the
OLC between September 11, 2001, and the present, to provide
legal advice to the White House or any department or agency of
the executive branch (including the Department of Justice and
This list shall:
(a) Identify the agency or
official who requested the legal advice from the OLC;
(b) Identify the recipient of each
legal opinion, letter, or memorandum;
(c) Identify the title of each
memorandum, letter, or opinion;
(d) Identify the DOJ or OLC
official who signed the opinion, memorandum, or letter;
(e) Include a brief description of
the legal issues addressed by the opinion, memorandum, or
(2) The section entitled “DOJ
analysis” from the Central Intelligence Agency’s May 7, 2004
classified Inspector General Report (“CIA IG Report”).
According to a redacted version of the report, given to the
American Civil Liberties Union in response to a Freedom of
Information Act lawsuit, it contains a section entitled “DOJ
Analysis”. Any review by the CIA of OLC’s legal reasoning or
conclusions regarding detainees or interrogation issues is
pertinent to this Committee’s oversight responsibilities.
(3) Memorandum for Alberto R.
Gonzales, Counsel to the President,
Re: “Protected Persons” in
Occupied Iraq (March 18, 2004).
(4) Any final OLC memorandum or
written legal advice concerning applicability of the Fourth
Geneva Convention in Iraq, including but not limited to Article
According to press reports, Jack
Goldsmith III, Assistant Attorney General, OLC, drafted a March
19, 2004 memorandum, at the request of the CIA, Re:
Applicability of the Fourth Geneva Convention in Iraq, including
but not limited to Article 49. Press reports suggest that legal
advice from the OLC on this subject was finalized in 2004.
(5) Memorandum for Alberto R.
Gonzales, Counsel to the President, and William J. Haynes II,
General Counsel, Department of Defense (“DOD”), from John C. Yoo,
Deputy Assistant Attorney General, OLC,
Re: Authority for Use of
Military Force to Combat Terrorist Activities Within the United
States (Oct. 17, 2001).
(6) Memorandum for Daniel Bryant,
Assistant Attorney General, Office of Legislative Affairs, from
John Yoo, Deputy Assistant Attorney General, OLC,
Re: Applicability of 18 U.S.C.
§ 4001(a) to Military Detention of United States Citizens
(June 27, 2002).
(7) Memorandum for William J.
Haynes II, General Counsel, DOD, from Jay S. Bybee, Assistant
Attorney General, OLC, Re:
The President’s Power as Commander in Chief to Transfer Captured
Terrorists to the Control and Custody of Foreign Nations
(March 13, 2002).
(8) Memorandum from the Department
of Justice, Re: Liability of interrogators under the Convention
Against Torture and the Anti-Torture Act when a prisoner is not
in U.S. custody. This document has been referred to in several
press reports but no specific date for the memorandum has yet
(9) Memorandum for John Yoo,
Deputy Assistant Attorney General, OLC, from James C. Ho,
Attorney-Advisor, OLC, Re: Possible Interpretations of Common
Article 3 of the 1949 Geneva Convention Relative to the
Treatment of Prisoners of War (Feb. 1, 2002), or any other
finalized memoranda or opinions provided by the OLC regarding
the interpretation of Common Article 3 of the 1949 Geneva
Convention relating to the treatment of prisoners of war.
(10) Memorandum for Alberto
Gonzales, Counsel to the President, from Patrick F. Philbin,
Deputy Assistant Attorney General, OLC,
Re: Legality of the use of
military commissions to try terrorists (Nov. 6,
Finally, we have now reviewed the
classified OLC documents you have provided us. The information
redacted from these documents leaves us unable to understand how
statutes within this Committee’s jurisdiction are being
interpreted, as well as whether the advice OLC provided is
commensurate with the high standards that we have come to expect
from an office with such a great responsibility to provide
careful and independent legal advice to the Executive branch.
We therefore request unredacted
versions of all of these documents. The unredacted documents
will be available only to personnel with the appropriate
To the extent necessary, the
Administration may provide documents requested in this letter in
classified form and the Committee will handle them consistent
with all appropriate security measures.
Thank you very much for your
prompt attention to this important issue.
cc: The Honorable Michael B.
The Honorable J.
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