OLC Deputy: More Secret Memos to be Released

The Justice Department's Office of Legal Counsel, which provides legal opinions to the executive branch, is releasing more of its controversial interrogation-related memos to Congress, but not fast enough to satisfy critics.

"This is certainly too little and too late," said Sen. Russ Feingold (D-Wis.) on Wednesday at a hearing titled "Secret Law and the Threat to Democratic and Accountable Government."

At the hearing before the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, Deputy Assistant Attorney General John Elwood said that Main Justice and Congress continue to negotiate the disclosure of the legal opinions to the intelligence committees.

The memos, including a now-infamous 2002 opinion written by John Yoo that narrowly equated torture to acts leading to organ failure and death, have proved highly controversial and continue to generate debate.

The OLC work has gained further notoriety in light of the release a month ago of yet another opinion by Yoo, a former OLC deputy who now teaches at the University of California at Berkeley School of Law. That March 2003 memo stated that criminal laws would not apply to interrogators if they acted "to prevent further attacks." The same opinion references a 2001 memo, which has not yet been released, that found that the Fourth Amendment did not apply to domestic military operations.

Elwood said the opinions in question stand apart from others. "I think that the terrorism opinions are suis generis . . . because in the aftermath of 9/11 . . . [government lawyers] were scrambling about what to do because they thought another terrorist attack was coming." Elwood added that the memos will show that certain policies were discussed and considered, but not adopted.

At Wednesday's hearing, former Justice lawyers and government classification experts took turns criticizing the secrecy surrounding the legal reasoning underpinning the national security policies of President George W. Bush in regard to surveillance, interrogation, and detention.

"The administration took advantage of the secrecy at the OLC to violate . . . the longstanding policies in order to essentially cook the books that would not survive peer review," said J. William Leonard, who retired as director of the Information Security Oversight Office at the National Archives and Records Administration in January. He called the 2002 Yoo memo “one of the worst abuses of the classification process I have seen during my career.”

Even those who toiled in the White House Counsel's office in the Sept. 11, 2001, aftermath conceded that the administration may have gone too far to cover its tracks with secret legal opinions.

Bradford Berenson, a Sidley Austin partner and former associate counsel in the Office of White House Counsel from January 2001 to January 2003, said that some of the memos "should not have been classified."

Sen. Sheldon Whitehouse (D-R.I.), who serves on the Judiciary and Intelligence committees and has had access to classified legal documents, praised Berenson's assessment and criticized the OLC as "the little shop of horrors that would deliver what was requested."

Elwood found a staunch ally in David Rivkin, a Baker Hostetler partner who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin defended OLC’s work and said disclosure of internal deliberations is harmful to effective decision-making. "It chills the candor with wich advice is given," Rivkin said.

Also speaking at Wednesday's panel were Dawn Johnsen, law professor at Indiana University School of Law and a former OLC chief under Attorney General Janet Reno; Heidi Kitrosser, an expert on executive privilege, secrecy and separation of powers at the University of Minnesota Law School; and Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. For the witnesses' testimony, click here.