The Knight Institute last week joined a group of advocacy organizations from across the political spectrum in signing a letter to members of the Senate Judiciary and Armed Services Committees urging them to include the OLC Transparency Amendment in the National Defense Authorization Act in 2023.
The amendment would require the Justice Department to publicly disclose Office of Legal Counsel (OLC) opinions, with limited exceptions to protect classified information. Sometimes dubbed the “Supreme Court of the executive branch,” the OLC issues legal opinions that bind federal agencies on matters of public concern, and it produces authoritative law on issues ranging from warrantless surveillance to the torture of detainess, federal employee benefits, and more. Although these opinions often implicate questions of overwhelming public concern, most remain secret. The November 9 letter calls on Congress to intervene to ensure that the OLC adopts a “bona fide presumption of transparency.”
The letter is part of a larger effort by the Institute to shed light on the OLC’s secret law. Over the past several months, the Institute has made public hundreds of OLC opinions obtained as part of a landmark legal settlement in a lawsuit seeking disclosure of OLC opinions written more than 25 years ago. As a result of this settlement, the Institute currently houses a comprehensive public database of opinions written by the OLC to date, and also launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its own online database—which generally happens without public notice.