Access to OLC Opinions Still in Contention

Legal opinions issued by the Justice Department Office of Legal Counsel that interpret the law for the executive branch on questions of surveillance, detention and other disputed national security policies are among the Bush Administration records that are most urgently sought by members of Congress and others, and are often among the records that are most tightly withheld.

More than four years after it was first requested by Congress, the Justice Department last week finally delivered a copy of a 2001 opinion issued by the Office of Legal Counsel (OLC) on the “Legality of the Use of Military Commissions to Try Terrorists” (pdf) to the Senate Judiciary Committee.

Senator Patrick Leahy, chairman of the Committee, said the Justice Department had also promised to provide his Committee with six other OLC opinions related to terrorism, detention and interrogation policy, but then declined to do so, instead offering an opportunity for Committee staff to review the documents at the Justice Department.  He criticized the Department for “going back on its word.”

Senator Leahy had originally requested the 2001 OLC memorandum in a June 15, 2004 letter to then-White House counsel Alberto Gonzales.

The newly disclosed memorandum, which was always unclassified, is believed to have been “part of the deliberative process of the Executive Branch in connection with the establishment of military commissions,” according to John P. Elwood of the OLC.  He noted, in response (pdf) to a question from Sen. Russ Feingold, that “The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).”

Attorney General Michael Mukasey said on December 3 that certain OLC opinions may be withheld from the Obama transition team until the new Administration takes office on January 20, either because the documents are privileged or because of their high classification level, the Washington Post reported on December 4.

“The Bush administration talks about working together, but they care more about continuing their secretive practices,” Senator Leahy said.  “Just as there is no justification for denying the incoming administration legal opinions that were the basis for Executive Branch policy, there is no justification for denying them to the Senate Judiciary Committee.”

“We will be working hard to have the Justice Department leadership team in place as soon as possible so we can begin to peel back the layers of secrecy that has defined this administration,” he said.