More about OLC Opinions

Clayton, Cornell William cwclayton at wsu.edu
Fri Feb 12 12:49:24 PST 2010


Several people have asked (on and off-list) about my query regarding OLC
opinions.  I have heard from a few individuals who have previously
worked at OLC (Chris Schroeder at Duke was particularly helpful), and
below I summarize what they told me, and then I take this opportunity to
pose another question to the list (I apologize for the length of this
post).

 

1.  Apparently OLC regularly produces highly classified opinions.  It
has its own SCIF, and it advises the intelligence, national security and
defense agencies regularly.  So the level of confidentiality assigned to
the Yoo opinions was hardly unprecedented.  It is difficult to know
exactly how much classified work is done by the OLC because no one but
the immediate authors sometime know of the existence of some of the
classified opinions that OLC generates. 

 

2.  OLC opinions can also remain unpublished not because they are
classified under the national security guidelines, but because they are
considered confidential in the lawyer-client sense.  They might be
considered deliberative process documents that need not be disclosed
even pursuant to a FOIA request.  There are a many such opinions, but it
is difficult to know the precise number.  In addition, OLC also provides
a large amount of advice via e mails that can be quite elaborate, but
that may not have the levels of review associated with a written opinion
that needs to be signed by the AAG.  These e mails can be sent by line
attorneys -- after consultation with deputies and perhaps the AAG -- but
archiving of these has been uneven in the past and there is a question
as to whether e-mail advice should be seen as the same as more formal
opinions.

 

3.  If we only consider non-classified opinions that leave the office
over the signature of a deputy or the AAG, the sense of some attorneys
who have worked at the office in the past is the majority of these
opinions were published.  This may have changed however during the Bush
years toward less publication, and now under Obama may be swinging back
toward more publication.  All of this is impressionistic and no one I
have talked to knows of any systematic data about the percentage of
opinions that are unpublished as opposed to published.   (If any one can
point me in the direction of this information I would appreciate hearing
from you).

 

 

So my question:

 

Do members of the list see a separation of powers problem posed by
classified or confidential OLC opinions (such as the terror memos during
the Bush administration) which may have the effect of shielding
executive branch officials from future prosecutions for violating the
law?  (Note - I don't see any such problem for opinions that are
published because then any clear misrepresentation of the law can be
challenged).  

 

If so, is there an institutional fix to this problem?  One possible
solution would be to remove the OLC entirely from the Justice Department
and make it an independent agency -- but this raises its own
constitutional and prudential concerns.  Other institutional fixes may
be to internally insulate all or a part of the OLC which would work on
classified or confidential advising so that it is buffered from direct
pressure by political appointees at DOJ or the White House (similar say
to the Office of Professional Responsibility).  

 

Or are institutional fixes worse than the problem itself?  Perhaps the
problem is related to personnel rather than structure, in which case the
chief concern should about the character of individuals appointed to key
positions at Justice?  

 

Again, I apologize for the length.

 

Cornell

 

Cornell W. Clayton

Director, Thomas S. Foley Institute

C.O. Johnson Distinguished Professor of Political Science

Washington State University

Pullman, WA 99164

509-335-2427

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