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Secret Law Isn’t the Public’s Fault

Until the Office of Legal Counsel makes informal opinions available to the public, the public will remain a victim of secret law.

November 9, 2015

Secret Law Isn’t the Public’s Fault” by Eliza­beth Goitein, origin­ally published on Just Secur­ity, on Novem­ber 9, 2015.

Offi­cials in this admin­is­tra­tion have a funny way of blam­ing the victim. Did the CIA spy on Senate intel­li­gence commit­tee staffers who were invest­ig­at­ing the agency’s torture program? No. OK, yes, you caught us — but the staffers were poking their nose into the CIA’s busi­ness. Are communit­ies in some cities suffer­ing from an uptick in crime rates? That must be because they were crit­ical of police prac­tices, and so the police are afraid to do their job. Are Amer­ican Muslims dispro­por­tion­ately singled out for law enforce­ment scru­tiny? It would­n’t be neces­sary if they did a better job of identi­fy­ing and root­ing out the terror­ists in their midst. Did a drone strike kill a 16-year-old boy who wasn’t on any target list but happened to be the son of alleged al-Qaeda oper­at­ive Anwar al-Aulaqi? I guess he “should have had a more respons­ible father,” as then-White House press secret­ary Robert Gibbs help­fully explained.

At the annual confer­ence of the Amer­ican Bar Asso­ci­ation’s Stand­ing Commit­tee on National Secur­ity Law, offi­cials were at it again. Both the CIA’s General Coun­sel, Caroline Krass, and the acting head of the Justice Depart­ment’s Office of Legal Coun­sel (OLC), Karl Thompson, observed that agen­cies are issu­ing fewer requests for formal OLC opin­ions and are seek­ing “informal,” unwrit­ten advice from OLC instead. This trend under­mines the public’s abil­ity to obtain OLC opin­ions through FOIA requests. And, accord­ing to Krass, we have no one to blame but ourselves:

I do think one reason is a focus the office has gotten [in] the past 10 years or so in the public which has now led to Free­dom of Inform­a­tion Act requests pretty much anytime the admin­is­tra­tion adopts a posi­tion in the context of domestic law or national secur­ity that could be [or] seems a little bit edgy or slightly contro­ver­sial, imme­di­ately the request for the OLC opin­ion comes.

What were we think­ing? Well, we might have had in mind OLC offi­cials’ own acknow­ledg­ment that their opin­ions consti­tute the work­ing law of the exec­ut­ive branch, and are bind­ing on agen­cies in the same manner that a court’s decision would be. When the public expresses interest in a contro­ver­sial court opin­ion, that isn’t cited as a reason to move the judi­cial system into the shad­ows. To the contrary, it’s well-under­stood that the public has a right to know how judges are inter­pret­ing the law. That’s true regard­less of whether the law deals with the rights and oblig­a­tions of private parties or (as is usually the case with OLC opin­ions) the author­it­ies of the govern­ment. 

It’s high time we stop pretend­ing that OLC opin­ions are merely attor­neys’ advice, and thereby entitled to confid­en­ti­al­ity. A private person is free to accept or reject her attor­ney’s advice. By contrast, as Thompson recog­nized, OLC opin­ions — even informal, unwrit­ten ones — are “bind­ing by custom and prac­tice . … People are supposed to and do follow [them].” Moreover, in ordin­ary circum­stances, it is no defense to crim­inal charges that the defend­ant’s lawyer gave bad advice. OLC opin­ions, on the other hand, confer effect­ive immunity, as the Justice Depart­ment will not prosec­ute any offi­cial who acted in reli­ance on OLC’s conclu­sions.

The govern­ment nonethe­less argues, and many courts have agreed, that OLC opin­ions are exempt from disclos­ure under FOIA because they are “delib­er­at­ive” and “pre-decisional.” This assess­ment conflates two distinct decisions: the decision of an agency whether to adopt a course of conduct, and OLC’s decision regard­ing how to inter­pret the law. The latter decision may be one factor — along with other, non-legal factors, such as polit­ical viab­il­ity, finan­cial cost, and the exist­ence of compet­ing prior­it­ies — in the agency’s “delib­er­a­tions” on the former. The agency ulti­mately must decide whether to move forward with a policy. But on the ques­tion of how the law should be inter­preted, it is OLC, not the agency, which has the final word. If the agency were to issue a differ­ent legal inter­pret­a­tion, there is no ques­tion that OLC’s would take preced­ence, and the agency would be court­ing legal jeop­ardy by adopt­ing a course of action in tension with OLC’s read­ing of the law.

Perhaps the solu­tion is simply to require the govern­ment to abide by its own char­ac­ter­iz­a­tion. If OLC opin­ions are to be given the status of delib­er­at­ive docu­ments and/or legal advice, so be it; but in that case, they cannot be bind­ing on any agency or offi­cial, nor can they mitig­ate any offi­cial’s crim­inal or civil liab­il­ity (unless they genu­inely negate a required state of mind). If, on the other hand, the govern­ment wishes to treat OLC opin­ions as author­it­at­ive and a shield against prosec­u­tion or civil suit, then they must be called what they are — law — and made avail­able to the public. Until that happens, the public will remain a victim of secret law, and there will be no one but the admin­is­tra­tion to blame.