from the FAS Project on Government Secrecy
Volume 2008, Issue No. 118
December 17, 2008

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Legal opinions issued by the Justice Department Office of Legal Counsel that interpret the law for the executive branch on questions of surveillance, detention and other disputed national security policies are among the Bush Administration records that are most urgently sought by members of Congress and others, and are often among the records that are most tightly withheld.

More than four years after it was first requested by Congress, the Justice Department last week finally delivered a copy of a 2001 opinion issued by the Office of Legal Counsel (OLC) on the "Legality of the Use of Military Commissions to Try Terrorists" to the Senate Judiciary Committee.

Senator Patrick Leahy, chairman of the Committee, said the Justice Department had also promised to provide his Committee with six other OLC opinions related to terrorism, detention and interrogation policy, but then declined to do so, instead offering an opportunity for Committee staff to review the documents at the Justice Department. He criticized the Department for "going back on its word."

Senator Leahy had originally requested the 2001 OLC memorandum in a June 15, 2004 letter to then-White House counsel Alberto Gonzales.

The newly disclosed memorandum, which was always unclassified, is believed to have been "part of the deliberative process of the Executive Branch in connection with the establishment of military commissions," according to John P. Elwood of the OLC. He noted, in response to a question from Sen. Russ Feingold, that "The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court's decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)."

Attorney General Michael Mukasey said on December 3 that certain OLC opinions may be withheld from the Obama transition team until the new Administration takes office on January 20, either because the documents are privileged or because of their high classification level, the Washington Post reported on December 4.

"The Bush administration talks about working together, but they care more about continuing their secretive practices," Senator Leahy said. "Just as there is no justification for denying the incoming administration legal opinions that were the basis for Executive Branch policy, there is no justification for denying them to the Senate Judiciary Committee."

"We will be working hard to have the Justice Department leadership team in place as soon as possible so we can begin to peel back the layers of secrecy that has defined this administration," he said.


Noteworthy publications from the Congressional Research Service that have not been made readily available online include the following.

"Executive Branch Reorganization and Management Initiatives: A Brief Overview," updated November 26, 2008.

"Islamist Militancy in the Pakistan-Afghanistan Border Region and U.S. Policy," November 21, 2008 (new format, with map).

"Section 1206 of the National Defense Authorization Act for FY2006: A Fact Sheet on Department of Defense Authority to Train and Equip Foreign Military Forces," updated November 25, 2008.

"Department of Defense 'Section 1207' Security and Stabilization Assistance: A Fact Sheet," updated November 25, 2008.

"Water Infrastructure Needs and Investment: Review and Analysis of Key Issues," updated November 24, 2008.

"Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training Program," updated November 14, 2008.

"Afro-Latinos in Latin America and Considerations for U.S. Policy," updated November 21, 2008.

"Party Leaders in the United States Congress, 1789-2009," updated November 25, 2008.

"Containing Financial Crisis," updated November 24, 2008.

"The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny," updated November 18, 2008.

"Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations," updated March 18, 2008.

"Recess Appointments Made by President George W. Bush, January 20, 2001-October 31, 2008," updated November 3, 2008.

"Nominations to Article III Lower Courts by President George W. Bush During the 110th Congress," updated October 20, 2008.

"The Motion to Recommit in the House of Representatives: Effects, Recent Trends, and Options for Change," November 20, 2008.

"Organic Agriculture in the United States: Program and Policy Issues," updated November 25, 2008.


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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