Secrecy Reigns at the DoJ Office of Legal Counsel

The Justice Department’s Office of Legal Counsel (OLC), which is responsible for interpreting the law for executive branch agencies, has played an influential role in the development of Bush Administration policy, and an unusually secretive one.

In a December 7 floor statement, Senator Sheldon Whitehouse (D-RI) described the contents of three OLC opinions that he had been able to review. One of them discussed the nature of executive orders as a category. Sen. Whitehouse characterized the conclusions of that OLC opinion as follows:

“An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order.”

We requested a copy of that seemingly innocuous, if questionable, opinion under the Freedom of Information Act. But the request was denied.

“We are withholding the document in full because it is classified and thus exempt under Exemption 1 of the FOIA,” the OLC responded (pdf).

“The OLC should publicly release more of its opinions, as was routinely done during Janet Reno’s tenure as attorney general during the 1990s,” the Washington Post editorialized today. “Too many Bush OLC memos remain secret, with only a handful of administration officials being privy to their conclusions.”

“During the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture.”