Tomorrow morning, the Senate Constitution Subcommittee of the Judiciary Committee will hold a hearing on Secret Law and the Threat to Democratic and Accountable Government. In Chairman Feingold’s words:
Senator Feingold is talking about memos put out by the Office of Legal Counsel (OLC), a part of the Department of Justice. The executive branch needs guidance on how the law affects its actions, and the OLC exists to provide legal interpretations for rest of the executive branch. These opinions strongly determine the nature of executive branch activities, and therefore have an undeniable bearing on the public interest. (more)
While, like most government information, some OLC memos contain sensitive information, most of them fall squarely within those things that the public has a right to understand, and should certainly be within the reach of congressional oversight committees. As the Bush Administration has treated even this agency-wide legal counsel as secretively as possible, most notably in the case of the John Yoo memo on so-called interrogation (released only thanks to an ACLU lawsuit ), Congress is beginning to redraw lines about what should be subject to classification, and what should lie plainly in the view of the public.
The expectation that executive legal opinions should generally be public isn’t new; this paper from the American Constitution Society, written by a team of former OLC lawyers and published in December 2004, lays out guidelines for the Office of Legal Counsel. Number six is on public memos:
reasons for delay or nondisclosure.
OLC should follow a presumption in favor of timely publication of its written legal
opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and
guard against excessive claims of executiin the lawfulness of governmental action…
It goes on, reading the entire paper is worthwhile (pdf, online version, more ACS resources).
Sunlight is happy to see Congress addressing legal secrecy, and agrees that public transparency is absolutely necessary for government accountability.
(via the AALL blog, Senator Feingold’s podcast feed, and ACS blog)