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Conyers And Nadler Ask for Justice Department Secret Opinions
(Washington, DC)- House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and Constitution, Civil Rights and Civil Liberties Subcommittee Chairman Jerrold Nadler (D-NY) today asked Attorney General Michael Mukasey for a list of the Justice Department's Office of Legal Counsel's "secret" legal opinions issued during the Bush Administration as well as copies of the unclassified opinions. The Administration has based decisions on the Iraq War, issues of interrogation and other matters on the legal guidance provided in these opinions, which have not been made available to the public or Congress. The letter states: "Recent revelations about the nature and extent of such secret opinions make plain the need for Congress and the American public to receive information on this subject."
[Text of the letter:]
April 29, 2008
The Honorable Michael B. Mukasey
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Attorney General:
We are writing about the apparently extensive body of secret legal opinions issued by the Department's Office of Legal Counsel during the Bush Administration, and the threat to our constitutional system of government posed by what appears to be a large and expanding body of secret executive branch law. Recent revelations about the nature and extent of such secret opinions make plain the need for Congress and the American public to receive information on this subject, as requested below.
The recent declassification by a Department of Defense official of OLC's March 14, 2003, interrogation memorandum ("Yoo Memorandum") raises several important issues in this regard. First, it appears to us that there was never any legitimate basis for the purely legal analysis contained in this document to be classified in the first place. The Yoo Memorandum does not describe sources and methods of intelligence gathering, or any specific facts regarding any interrogation activities. Instead, it consists almost entirely of the Department's legal views, which are not properly kept secret from Congress and the American people. J. William Leonard, the Director of the National Archive's Office of Information Security Oversight Office, and a top expert in this field concurs, commenting that "[t]he document in question is purely a legal analysis" that contains "nothing which would justify classification."1
In addition, the Yoo Memorandum suggests an extraordinary breadth and aggressiveness of OLC's secret legal opinionmaking. Much attention has rightly been given to the statement in footnote 10 in the March 14, 2003, memorandum that, in an October 23, 2001, opinion, OLC concluded "that the Fourth Amendment had no application to domestic military operations."2 As you know, we have requested a copy of that memorandum on no less than four prior occasions
and we continue to demand access to this important document.3 In addition to this opinion, however, the Yoo Memorandum references at least 10 other OLC opinions on weighty matters of great interest to the American people that also do not appear to have been released. These appear to cover matters such as the power of Congress to regulate the conduct of miliary commissions,4 legal constraints on the "military detention of United States citizens,"5 legal rules applicable to the boarding and searching foreign ships,6 the President's authority to render U.S. detainees to the custody of foreign governments,7 and the President's authority to breach or suspend U.S. treaty obligations.8 Furthermore, it has been more than five years since the Yoo Memorandum was authored, raising the question how many other such memoranda and letters have been secretly authored and utilized by the Administration.
Indeed, a recent court filing by the Department in FOIA litigation involving the Central Intelligence Agency identifies 8 additional secret OLC opinions, dating from August 6, 2004, to February 18, 2007.9 Given that these reflect only OLC memoranda identified in the files of the CIA, and based on the sampling procedures under which that listing was generated, it appears that these represent only a small portion of the secret OLC memoranda generated during this time, with the true number almost certainly much higher.10
Finally, we are concerned about the potential for confusion created by the handling of these opinions. For example, while memoranda of August 1, 2002, and March 14, 2003, are now public, and OLC apparently has disavowed them to some extent,11 a related August 2002 memorandum remains secret and it is not clear whether or to what extent it continues in force.12 Similarly, while the Department has prepared a detailed public statement of its broad views on the Federal torture statute, it continues to hold secret subsequent opinions operationalizing that advice.13 Such circumstances risk confusing or misleading the public, lawmakers, and even executive branch personnel who need to understand OLC's position on these issues.
While we appreciate the need to hold closely certain types of information in certain circumstances, we are skeptical that more information regarding the Department's analysis of relevant and important legal issues cannot responsibly be made public. A recent effort by a group of former OLC attorneys to enunciate a set of "guiding principles" for that office expressly recommended that "OLC should publicly disclose its written opinions in a timely manner, absent strong reasons for delay or non-disclosure."14 The CIA's recent release of details regarding the OLC memoranda contained in its files only supports that principle, and establishes a clear precedent for our request below.
Accordingly, please respond to the following questions:
1. Please provide a list of all written opinions (whether contained in a formal memorandum, letter, or email) addressing issues related in any way to national security, war, terrorism, interrogations, civil or constitutional rights of U.S. citizens, or presidential, congressional, or judicial power that the Office of Legal Counsel has issued since January 20, 2001, that have not been released to the public, including author(s), recipient(s), title, and length, and the reason that they were not released, including but without any limitation those identified in the attached appendix.
2. As to each opinion listed in response to question 1, please state whether it remains fully operative or whether it has been qualified, retracted, disavowed, or otherwise limited by the Department or the courts, and whether the Department has so notified recipients of the opinion.
3. As to each opinion listed in response to question 1, please state whether and to what extent it has been formally classified pursuant to Executive Order 12958 or any other purported legal classification authority, the basis for classification, the person who authorized the classification, and the date of classification.
4. Please provide a copy of each non-classified opinion listed in response to question 1.
We appreciate your attention to this matter and ask that you provide this information by Friday, May 9, 2008. Please direct your response and any questions to the staff at the Judiciary Committee office, 2138 Rayburn House Office Building, Washington, DC 20515 (tel: 202-225-3951; fax:: 202-225-7680).
John Conyers, Jr.
Chairman, Subcommittee on the Constitution, Civil Rights and Civil Liberties
cc: Hon. Lamar S. Smith
Hon. Trent Franks
Hon. Brian A. Benczkowski