A senior Justice Department official said today that “99.8 percent” of the department’s work with President-elect Barack Obama’s transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team's request to review classified legal opinions related to secret CIA and National Security Agency programs.
In a roundtable discussion with reporters last week, Attorney General Michael Mukasey declined to discuss specific requests made by transition staff regarding opinions issued by the Office of Legal Counsel, the arm of the Justice Department that provides legal advice to the president and all other executive branch agencies.
The Justice official said the dispute over access to the NSA and CIA opinions has made its way up to Williams & Connolly's Gregory Craig, who earlier this month was named to be Obama’s White House counsel. Craig was expected to meet with current White House counsel Fred Fielding to discuss the issue, the official said. It's unclear whether such a meeting has already taken place. The White House did not immediately respond to a request for comment.
The Justice official said the department was reluctant to provide the opinions to Obama's team without permission from the two intelligence agencies whose activities they address. At the roundtable, Mukasey said OLC opinions are issued at the request of other agencies with their "own equity or interest in the information.”
"And so what we try to do is determine whether, and to what extent, we can clear that information and try to do it as quickly as we can so as to get it to the transition team so that they're aware of all the things that they need when they take over on the 21st," Mukasey said, according to a transcript provided by the department.
The opinions, some of which have been released to Congress in redacted form, contain the legal rationale of the NSA’s warrantless spying program and the CIA’s detention and interrogation policies, among other intelligence initiatives.
In an unprecedented move, the Justice Department began providing provisional security clearances to Obama's staff prior to the election. A select group was cleared for access to even more sensitive information, but Mukasey said last week that some documents may not be made available to Obama's staff until they take their oath of office.
Obama's Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr’s David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.