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Written Questions for Eric H. Holder Jr.
From Senator Feingold

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Secret Law

2. I held a hearing last year on what I have been calling the problem of "secret law." Our legal system is based on the premise that the public has a right to know what the law is. But we now know that for the past seven years, bodies of executive and judicial law were kept secret from the public, and too often from Congress as well. The prime examples of this were binding opinions of the Office of Legal Counsel, and decisions of the Foreign Intelligence Surveillance Court interpreting the Foreign Intelligence Surveillance Act. Certainly there are times when these opinions and decisions may discuss sensitive operational information, and this type of properly classified information should not be made public. But that shouldn’t extend to an explanation of what the law is. Do you agree that, as a general matter, the Justice Department should be committed to more public access to OLC opinions and to FISA Court decisions? And will you work with me on legislation such as the OLC Reporting Act (S. 3501 in the 110th Congress) and Executive Order Integrity Act (S. 3405), to create some statutory protections against this problem?

I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law. Public scrutiny also provides an important check against unpersuasive legal reasoning – reasoning that is biased toward a particular conclusion. Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC's policies relating to publication of its opinions with the goal of making its opinions available to the maximum extent consistent with sound practice and competing concerns.

In that regard, I support the principles behind the proposed OLC Reporting Act. I believe that the Department should notify Congress when it concludes that a provision of a statute is unconstitutional or when it interprets a statute in a manner that is manifestly at odds with its intent. As your question indicates, such notice is subject to the legitimate privilege and other secrecy concerns of the executive branch. I will commit to work with Congress to satisfy Congress's legitimate interest in notice and the executive branch's legitimate interests in efficiency and confidentiality.

State Secrets

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

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