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Op-Ed In New York Times: “Release Justice’s Secrets”

Senior Counsel, Fritz Schwarz and Nicholas Katzenbach’s op-ed in the New York Times on what the judiciary branch must to do prevent continued secrecy of the executive.

Published: November 21, 2007

Cross posted from The New York Times

MICHAEL MUKASEY has been confirmed as attorney general. But the profound moral, legal and constitutional issues raised at his Senate Judiciary Committee hearings are unresolved. Mr. Mukasey should open the door to their resolution by releasing the Justice Department’s long-secret legal opinions that have warped our fight against terrorism.

When the Justice Department, usually acting through its Office of Legal Counsel, issues legal opinions binding on the executive branch, there is never justification for keeping them secret. Opinions that narrowly define what constitutes torture; or open the door to sending prisoners for questioning to Egypt and Syria, which regularly use torture; or rule the president has some “inherent power” to ignore laws are all of concern to Congress and the public whether one agrees or disagrees with the legal analysis.

Yet all these opinions have been kept secret, along with many other, related post-9/11 opinions that purport to decide what America’s law is.

Secrecy always increases the risk of foolish mistakes. If the withheld opinions are sound, why fear letting them see the light of day? Is there ever a justification in a government of law for keeping what one believes to be the law secret?

Some may say releasing the opinions will lead to more embarrassment. To this, there are two answers. First, what is most important is that we get it right and remain true to our country’s values. Second, the best way to restore our reputation is to confront our mistakes openly and then resolve not to repeat them.

Some also say that releasing opinions on, for example, torture, may give terrorists a window into what techniques we do and do not use. Again, this has it backwards. The world should know we reject the tactics of the enemy.

These issues must be faced openly by the new attorney general, by Congress, by presidential candidates and by the American public.

Mr. Mukasey can do a great deal to help restore both our Constitution and America’s reputation, and thus strengthen us at home and abroad. A good start would be to release the secret opinions of the Office of Legal Counsel.

Frederick A.O. Schwarz: “Release Justice’s Secrets” (PDF)