The Office of Legal Counsel and Secret Law
In theory, it’s the province of the judiciary to say what the law is, but in practice this task often falls to the Office of Legal Counsel. This is because many important questions relating to the scope of executive power never come before the courts. It’s the executive branch that has the last word, and within the executive branch, it’s the OLC. When questions arise about what the government has the power to do, it’s often the OLC that answers them. When agencies have disagreements about the law, it’s the OLC that resolves them.
Because they have the force of law within the executive branch, and because they often address topics of real consequence, the OLC’s opinions are frequently the subject of litigation under the Freedom of Information Act (FOIA). Usually this litigation arises under the provisions of FOIA that require federal agencies to respond to requests for records. Someone learns of the existence of an OLC opinion, requests it, and then sues to enforce the request when the OLC fails to respond, or when it claims the opinion is privileged. Occasionally this kind of litigation results in important disclosures, but there’s something disturbingly backwards, and even undemocratic, about a system that allows the government to conceal and withhold opinions that have the force of law unless and until someone requests them.
On Tuesday morning in Washington DC, a federal district court will hear argument in a case that presents the question whether the OLC has an obligation to publish an index of its final written opinions, and to consider those opinions individually for possible release, even in the absence of any FOIA request. (The Knight Institute represents the plaintiff.) The case, called Campaign for Accountability v. DOJ, doesn’t involve a conventional request for records. Instead, it involves an effort to enforce FOIA’s “reading room” provisions, which impose an affirmative obligation on federal agencies to publish their final opinions, orders, policies, and interpretations. Forty years ago, in Sears v. NLRB, the Supreme Court observed that these provisions reflect a “strong congressional aversion” to “secret law,” and it held that they require agencies to publish, even in the absence of any request from a member of the public, “all opinions and interpretations that embody [the agencies’] effective law and policy.”
The Campaign for Accountability case is important because, despite the clear applicability of the Supreme Court’s command to the kind of opinions OLC produces, the OLC doesn’t comply with the reading room provisions at all. To the contrary, it views itself as entirely exempt from them. As a result, the OLC has accumulated, over the years, a body of legal opinions that have the force and effect of law but whose very existence is concealed from the public. It’s impossible to estimate the size of this hidden corpus, but it’s perhaps useful to note that a case litigated by the ACLU two years ago uncovered, more-or-less by accident, the existence of almost a dozen OLC opinions whose existence the OLC had not previously acknowledged. A report published by the Brennan Center last year suggests there may be many more.
The OLC has accumulated, over the years, a body of legal opinions that have the force and effect of law but whose very existence is concealed from the public.
The OLC contends that its opinions are categorically exempt from the reading-room provisions because these opinions constitute legal advice, not law. But the description of the OLC’s formal written opinions as advisory is, at best, incomplete. Within the executive branch, the OLC’s opinions are accorded essentially the same status as opinions of the U.S. Supreme Court. Steven Bradbury, who led the OLC during President George W. Bush’s second term, wrote in 2005 that “OLC opinions are controlling on questions of law within the Executive Branch.” David Barron, who led the office during the Obama administration, observed in 2010 that the OLC is “frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts—a circumstance in which OLC’s advice may effectively be the final word on the controlling law.” In litigation, the OLC describes its final opinions as advisory, but in fact it views these opinions as binding on federal agencies, and this is how the agencies view them, too. Many OLC opinions are better characterized as law than as legal advice.
In further defense of its non-compliance with the reading-room provisions, OLC points out that it has published hundreds of its opinions on its own initiative. These discretionary disclosures, though, aren’t a substitute for compliance with the reading-room requirements. The FOIA entitles the public to know what the law is, not just what the OLC wants it to know about what the law is. Discretionary disclosures may be selective, with, for example, the OLC disclosing opinions that place limits on government power but not ones that construe government power broadly. Recall that it was the Second Circuit, not the OLC, that published the OLC’s opinion green-lighting the “targeted killing” of Americans overseas. And discretionary disclosures leave the public in the dark about the existence, and even number, of opinions that have not been disclosed.
The OLC also argues that requiring it to publish its final written memos would discourage agencies from seeking its advice in the first place. This argument is overstated. First, no one contends that all of the OLC’s opinions are subject to the reading-room provisions; the focus is on the subset of final written opinions that constitute the government’s working law. Second, even as to those opinions, application of the reading-room provisions would not deprive the OLC of the right to withhold or redact information on privacy, national security, or other grounds. If the OLC were to comply with the reading-room provisions, it would have to publish a list of final written opinions that operate as controlling law within the executive branch, and it would lose its ability to withhold these opinions under the deliberative-process and attorney-client privileges. It would retain the right, however, to withhold or redact these opinions on other grounds.
Of course, one can’t rule out entirely the possibility that some agencies will hesitate to consult with OLC if the office becomes more transparent. In most instances, however, that hesitation is likely to be overcome by agencies’ desire for the legal certainty and cover that only the OLC can provide. (An OLC opinion is effectively an “advance pardon” for conduct that might otherwise be prosecuted, Jack Goldsmith, another former OLC chief, wrote in The Terror Presidency.)
Perhaps more importantly, Congress considered the possibility of a chilling effect when it enacted the reading-room provisions fifty years ago, and it concluded, as the Supreme Court noted in Sears, that the public’s fundamental interest in knowing the law should prevail over any government interest in preserving the confidentiality of legal advice. Why this principle should apply to other agencies but not to OLC, the OLC doesn’t really say. Given the unique role that the office plays in the executive branch, one would think that the principle would apply to the OLC with particular force.
The courts should compel the OLC to comply with the reading-room provisions—to publish an index of its final written opinions, to consider those opinions individually for possible release, and to justify withholdings and redactions by reference to FOIA exemptions other than those relating to the attorney-client and deliberative-process privileges. Requiring the OLC to do these things wouldn’t compromise any legitimate government interest, but it would represent an important step toward eliminating what Congress meant to eliminate half a century ago—secret law.