The Attorney General’s Secret Law Factory

Imagine this: A group of lawyers is tasked with interpreting the Constitution and the laws Congress passes. Whatever these lawyers say binds government agencies, except in the unlikely event a federal judge invalidates their conclusions. Agencies can rely on these interpretations to broaden their own authority and further empower unaccountable administrative actions. And while they are paid by taxpayers to write these opinions and tasked with presenting an independent assessment of the law, their opinions have hedged closer and closer to what the executive would have wanted to hear anyway.

This is the Office of Legal Counsel, a part of the Department of Justice. OLC weighs in on matters as consequential as what constitutes torture, how U.S. citizens can be engaged on foreign soil, and what rules guide presidential action around executive orders. And that’s just one decade.

They have issued volumes of other opinions over the decades and under many administrations. But even if none of them concern you, here’s something that should: The public doesn’t get to see them. In fact, you don’t get to know what some of them are about, or even how many exist. Whatever your political views may be, we should all be able to agree that the public should be able to review impactful legal determinations like these. Instead, Congress has to fight tooth and nail to read them, and the public only gets access to the opinions that OLC decides to release proactively, or are wrenched free by a Freedom of Information Act request.

A reasonable response might be, “That’s what the FOIA is for! Just go request it. And if the government denies the request? It might be expensive, but someone can always hire a law firm to sue.”

Plenty of people and organizations do resort to this, driving up cumulative millions of dollars in expenses for both requesters and taxpayers.

In fact, the government has repeatedly redacted innocuous information and forced good government organizations to spend substantial time and money to uncover them. To be specific, much of this information is redacted under b(5) of FOIA. That’s the “inter-agency” exemption, which, among other things, allows the government to withhold “predecisional” or “deliberative” documents. Unfortunately, b(5) has become a cloak of secrecy when it comes to OLC, because the government argues OLC opinions aren’t final and don’t control other government agencies. Some courts have agreed.

This stands in stark contrast to OLC’s own “best practices” memorandum, which describes its “core function” as providing “controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.”

OLC opinions affect all Americans. Sometimes in small ways, sometimes in big ways. But they carry the effect of law. Or, as the OLC best practices memo puts it, “OLC’s advice may effectively be the final word on the controlling law.” Such things should not be kept in the dark.

That’s why Congress should increase transparency around OLC opinions.

Congress could pass a law that would add desperately needed transparency to the Office of Legal Counsel. Congress could require the Department of Justice to publish all of its opinions, with limited redactions, for instance. But there’s actually a much simpler step with narrower repercussions on the table. Right now, appropriators have the opportunity to require the Department of Justice to report to Congress and the public a list — just a list — of what final OLC opinions are in effect. For comparison, the Department of Defense Inspector General and the Government Accountability Office provide this kind of information when some or all of a report’s contents must remain nonpublic. If the Department of Defense, which produces a large number of classified and sensitive reports, can provide this level of transparency, a similar remedy should suit the Office of Legal Counsel.

Congress and the public could have confidence that there aren’t secret interpretations of laws as we all understand them. This list wouldn’t tell us if an OLC opinion had vitiated a(nother) law, but it would tell us if OLC had issued an opinion on an area of law that concerns the public. Oversight organizations wouldn’t need to sue for lists of opinions, and instead we could narrowly FOIA for the specific information we believe needs to be public, wasting less of our and the government’s time, not to mention taxpayers’ money. And in that context FOIA requesters could litigate what should and shouldn’t be public, just as Congress intended when it passed and reformed the Freedom of Information Act. That would look like open government, instead of a growing body of secret law hidden by the farce that it isn’t exactly what OLC calls its own opinions: “The final word on the controlling law.”

Imagine that.


Billy Easley is a senior policy analyst for Americans for Prosperity. Sean Vitka is policy counsel for Demand Progress.

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