Eric Holder on State Secrets, OLC Opinions

02.02.09 | 2 min read | Text by Steven Aftergood

Attorney General-nominee Eric H. Holder, Jr. said that, if confirmed, he will review current litigation in which the Bush Administration has asserted the state secrets privilege and that he will seek to minimize the use of the privilege.

“I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations,” Mr. Holder wrote in response to pre-confirmation questions for the record from Sen. Russ Feingold.

He also affirmed a general commitment to open government.

“I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law,” Mr. Holder told Sen. Feingold.

More particularly, he said he favored maximum public disclosure of Office of Legal Counsel opinions.

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Mr. Holder wrote.

Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.

“Releasing the memos would … signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct,” the ACLU wrote.

The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration.  See “The Missing Memos” by Dan Nguyen and Christopher Weaver, January 28.