Check out the Justice Department's Office of Legal Counsel web page and you'll find hundreds of legal opinions, dating to 1992. Is that all there is? Not at all.
A suit filed Tuesday in Washington federal district court challenges department secrecy when it comes to the public disclosure of OLC opinions.
The complaint, filed by Citizens for Responsibility and Ethics in Washington, asks a federal trial judge to direct the Justice Department to "make all binding legal opinions issued by OLC available for public inspection and copying."
"There exists within OLC and DOJ a body of secret law that, while binding on the executive branch, is not accessible to the public," CREW executive director Melanie Sloan and chief counsel Anne Weismann wrote in the complaint.
The Justice Department didn't immediately respond to a request for comment.
CREW's complaint said that "despite the binding nature of the opinions and advice the attorney general and now OLC render, DOJ's publication practices have varied widely."
The suit notes that OLC does, in fact, have an archive of opinions, back to 1933. Four volumes cover the years 1940 to 1982, the lawsuit said. "There is no publicly available figure of the exact number of opinions OLC has issued," according to the suit.
The OLC opinions posted on the Justice Department's web site confront a variety of issues—from a clash between executive privilege and congressional investigations to "requests for information under the Electronic Communications Privacy Act." Other opinions include: "Whistleblower Protections for Classified Disclosures" and "Use of Federal Employees for Olympic Security."
This fall, the U.S. Court of Appeals for the D.C. Circuit will hear a dispute between the Electronic Frontier Foundation and the Justice Department over one Office of Legal Counsel memo that the government has kept secret.
In that case, the FBI sought advice from OLC about information-gathering from telephone companies. The opinion, government lawyers said in court papers, "provides advice to the FBI regarding the viability of one legal theory on which such records might be sought."
A trial judge, Richard Leon, citing the deliberative process privilege, ruled for the government. DOJ lawyers argue in the D.C. Circuit that "mandatory disclosure of OLC's opinions would chill deliberative discussions within the Executive Branch."
"OLC serves a valuable role in providing confidential legal advice to federal agencies as they develop their policies," Daniel Tenny, a Civil Division appellate lawyer, wrote in a brief. "Protecting the confidentiality of candid communications between OLC and policy-making agencies lies at the very core of the deliberative process privilege, which is a uniquely governmental privilege designed to promote the quality of government decision-making."
D.C. Circuit Judge Sri Srinivasan, sitting with senior judges Harry Edwards and David Sentelle, are scheduled to hear the case November 26.
CREW's suit was assigned this afternoon to U.S. District Judge Emmett Sullivan.