Op-ed: Challenging secrecy in the Justice Department’s Office of Legal Counsel

Bryan Olin Dozier/NurPhoto via AP

In 2012, Charlie Savage, a New York Times reporter covering President Obama’s controversial use of “recess appointments” to fill vacancies at key government agencies, wanted to read two legal opinions prepared by the Justice Department’s Office of Legal Counsel (OLC). Savage knew of the memos because they were cited in another memo the OLC had prepared and publicly released at the time of the appointments. But, as was often its practice, the OLC had concealed the two original memos. Savage and the Times filed a Freedom of Information Act lawsuit to secure their release, but the lawsuit failed, and the memos remain out of reach.

Savage and the Times had better luck last month, when someone leaked a 2010 OLC legal opinion evaluating whether the United States could legally lend support to international prosecutions for war crimes. Since the outbreak of the war in Ukraine, President Biden and other elected officials have expressed such support for International Criminal Court prosecutions of top Russian officials for war crimes. But those statements contrast sharply with the more antagonistic posture the US has often taken toward the ICC, and in fact has codified into law. Indeed, the leaked OLC memo reviews and interprets a litany of laws Congress has passed that could bar the kinds of cooperation US officials now seem to advocate. So important is the memo to current understanding of what the US can do to support the ICC that the Times published it in its entirety. It would have remained secret had it not been for a leak.

Secrecy has been a hallmark of the OLC since it was created by an act of Congress in 1933 to resolve legal questions for the White House and executive-branch agencies. Since its inception, the agency, known colloquially as “the Supreme Court of the executive branch,” has generated thousands of memos that have guided government conduct affecting almost all aspects of the lives of Americans and of citizens of countries in every corner of the world. Though its legal opinions shape the policies of numerous agencies—among them, the US Armed Forces, the Central Intelligence Agency, the Department of Labor, the Internal Revenue Service, and the Social Security Administration—the OLC rarely releases its opinions on its own, and barely registers on the public’s radar.

In fact, what most Americans know of the OLC’s role came through a leak of its misdeeds. In June 2004, the Washington Post published a secret legal opinion prepared by Bush administration lawyers who had apparently green-lighted the torture of prisoners in US custody. Over the next several years, investigative reporting and Freedom of Information Act litigation brought by human rights organizations excavated additional OLC memos that had approved or created the conditions for the abuses that took place at CIA black sites and in US-run detention facilities in Iraq, Afghanistan, and Guantánamo Bay. These so-called “torture memos” highlighted both the scope of the Office of Legal Counsel’s role and the secrecy and impact of its highly influential legal opinions.

When leaks and foia lawsuits have succeeded in bringing other OLC opinions to light, those opinions have often reinforced the impression of an agency with enormous influence to shape and guide policy. And when foia lawsuits failed, as they often did, those failures illuminated the weakness of transparency mechanisms that are meant to promote public oversight of official decision-making. Indeed, though under the Freedom of Information Act even internal deliberations can be released to the public after twenty-five years, the bulk of the OLC’s work before 1996 has remained hidden from view.

At the Knight First Amendment Institute at Columbia University, we have tried to push against this pervading secrecy through two lawsuits addressing the OLC’s obligations under foia. In one, the Knight Institute represents Campaign for Accountability, a nonprofit watchdog that exposes corporate and government misconduct, in a challenge to the OLC’s failure to follow foia’s “reading room” provision, which requires agencies to proactively disclose final legal opinions or interpretations. In the other, the Knight Institute, along with a group of scholars and Campaign for Accountability, challenged the Office of Legal Counsel’s failure to comply with its obligation to release opinions it generated more than twenty-five years ago.

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Eighteen months ago, then–District Judge Ketanji Brown Jackson, who was recently confirmed by the Senate for the US Supreme Court, took an important step in the first of these cases toward concluding that at least one category of OLC opinion must be disclosed proactively. This category is estimated to encompass roughly one quarter of all opinions that are written for agencies outside the DOJ. Meanwhile, the Institute’s other lawsuit has pried loose hundreds of previously unpublished memos that were written over twenty-five years ago, along with an index of all the unclassified memos issued by the OLC between 1945 and 1994. That trove includes OLC writings that shaped White House and federal agency actions on war and peace, civil rights, women’s rights, digital surveillance, and many other crucial decisions in twentieth-century American history. Under a settlement reached with the agency, more than two hundred additional opinions will be released this spring, along with an index of classified opinions authored between 1974 and 1994.

To share these resources with journalists, historians, and the public at large, the Knight Institute has created a “reading room” on its website that now stands as the most comprehensive database of the OLC’s memos. The Reading Room includes dozens of indexes containing the titles and dates of all of the OLC’s unclassified opinions written between 1945 and February 15, 1994, and almost every opinion that OLC has published—including more than three hundred and fifty opinions produced in response to the Knight Institute’s litigation. In January, the Institute also launched @OLCforthepeople, a Twitter account that further improves access to OLC materials by alerting the public each time the OLC adds an opinion to its online database—a process that generally happens without public notice. So far, @OLCforthepeople has tweeted three times, to announce the publication of two OLC opinions written in 2022 and a third that was written in 1970 but remained secret until last month.

We believe these efforts not only make the OLC’s opinions more accessible to journalists and the public than they’ve ever been, but also help build a broader understanding of the OLC’s role in determining the policies and actions of a wide range of executive-branch agencies. Twenty years ago, legal contortions by OLC lawyers green-lighted torture and other gross human rights violations in Iraq, Guantánamo Bay, and secret CIA prisons. That the authors of those torture memos escaped professional sanction for their misconstructions of US and international law only compounded an impression of the OLC as a secretive legal shop with the power to bend or distort the law for the White House or federal agencies.

The annals of the OLC’s work over the past eighty-eight years and the hundreds of individual opinions that the Knight Institute has excavated in its litigation paint a new and far more revealing view of this “Supreme Court of the executive branch.” It’s a view that underscores the importance of public access to the OLC’s work—not just because excessive secrecy has sometimes led the OLC astray, but because the vast majority of its opinions chronicle legal thinking about some of the most challenging political and social questions the country has faced over the past nine decades, and because the way the OLC answers legal questions shapes presidential actions and policy decisions that reach from the international arena to the most mundane levels of agency operation and public life. The OLC’s opinions are part of the American story, and all of us—journalists, historians, lawyers, policymakers, and the public at large—will benefit from this new window on its work.

Stephanie Krent and Larry Siems are the authors. Krent is a Staff Attorney at the Knight First Amendment Institute at Columbia University. Siems is the Knight Institute’s Chief of Staff.