The White House finally agreed to allow lawmakers (not the public) to see the DOJ's Office of Legal Counsel memo authorizing the use of drone strikes on civilians, the New York Times reports, but as a Sunlight analysis has shown, the administration is still withholding 37% of these crucially important legal opinions from public view (that were issued from inauguration in 2009 until March 2012).
The administration is even holding on to much older opinions. 39% of OLC opinions issued between 1998 and 2012 are still being withheld from online publication, accounting for 201 of the 509 opinions issued during that time, our August 2012 analysis found.
Secret law and good governance do not mix. While we recognize that there occasionally may be reasons that countenance against their full release, we recommend the following:
- The Office of Legal Counsel should refresh its website to indicate how many memos are issued each year. It should adopt the default of releasing all memos, not just the ones it deems “significant” (as such a distinction invites abuse and mistrust), and should do so prospectively and retrospectively.
- Where OLC cannot release an opinion in its entirety, it should release versions that are redacted as lightly as possible.
- At a minimum, the titles of opinions should be released, and if even that raises insurmountable issues, descriptions of memos should be available in their stead.
- Finally, the administration should consider bringing in a trusted reviewer from outside the executive branch who can credibly (and publicly) make recommendations about the release of additional opinions.