THE OPINIONS of the Justice Department’s Office of Legal Counsel (OLC) are important, setting legal interpretations that bind federal agencies on issues such as torture and secret surveillance. So why can’t the public read all of the OLC’s legal conclusions?
That question underlies a challenge that the Electronic Frontier Foundation (EFF) has made against the Justice Department, seeking an OLC assessment of the FBI’s authority to surveil Americans without a judicial warrant. The Justice Department refused to hand over the OLC opinion, citing exceptions to the Freedom of Information Act. So far, the suit hasn’t gone the EFF’s way. But, as The Post and others recently argued in an amicus brief, the U.S. Court of Appeals for the District of Columbia Circuit should recognize the critical interest that the public has in knowing how the executive branch interprets the laws the Constitution tasks it to enforce.
At issue is an 11-page document dating to 2010, when the FBI was reviewing its practice of demanding telephone and other records from communications firms without a warrant — as long as the government claimed that the information was related to a national security investigation. Justice’s inspector general found that, even with all the leeway the law gives the FBI, it still sometimes demanded personal data without much of any process at all. After the FBI asked the OLC to weigh in, the EFF and others naturally wanted to know what determination the office made on the legal questions involved.
But the Justice Department denied the request, and the EFF’s appeal to Justice’s Office of Information Policy languished without a decision. In the case that followed, District Judge Richard J. Leon ruled that the OLC’s work was a protected part of a deliberative process within the government, necessary to ensure that policymakers can have open and frank discussions before they make final decisions.
Yet, as the amicus brief points out, the OLC’s opinions aren’t some intermediary step toward establishing the final legal interpretations for the executive branch. In general, they are the final legal interpretations for the executive branch. The FBI could choose to exercise the authority that the OLC said it had — or not — but Congress, the judiciary and the public at large all deserve to know what the executive branch thinks it can do, once it issues a conclusive opinion.
As it stands, the Justice Department can release the OLC conclusions, or it could not, which would mean there remains a storehouse of unreviewable government legal analysis determining what the government does on a daily basis. Only those sections that contain classified materials have good reason to remain secret. It’s now up to the courts to say so.