Judiciary Committee takes aim at secret law during attorney general nominee hearing


During Loretta Lynch’s confirmation hearing for one of the most critical positions in the federal government – attorney general – we saw a priority placed on improving the transparency and oversight of the Office of Legal Counsel (OLC), a component of the Department of Justice (DOJ). Such desperately needed changes have been a focus of Sunlight’s for years.

Specifically, Sen. Chuck Grassley, R-Iowa, flatly called for OLC opinions to be public, saying:

And let me say it right here: that office should be sharing with the American public the opinions it’s been providing to the president, especially when they supposedly sanction the unprecedented authority he claims to possess. And I’m going to work to see that it does. The public’s business ought to be public. Transparency brings accountability.

Hear hear!

Sen. Jeff Sessions, R-Ala., similarly pointed out – and Lynch confirmed – that sometimes government lawyers’ jobs require telling the president “no.” Sen. Sheldon Whitehouse, D-R.I., also described historical instances of DOJ opinions that were “so bad, so ill-informed and so ill-cited” that they had to be withdrawn upon being revealed.

A bit more surprising was seeing Sen. Dianne Feinstein, D-Calif., ask for a commitment to seeing the OLC opinions that provide the legal basis for surveillance activities, especially under EO 12333. Granted, she only wants them to “be available” to the Judiciary and Intelligence Committees — which means not public — and, since “available” is an incredibly fluid term, it might mean staff cannot look at it and Senators can’t talk about it or even take personal notes.

Feinstein has been a tremendous advocate in favor of greater surveillance abilities (and gave a softball question about sunsetting surveillance provisions in the PATRIOT Act), but has at times also called for greater oversight (if not transparency). But this was simply lackluster. Lynch did not provide a commitment, and Feinstein didn’t push, instead simply saying: “Thank you very much. This particular opinion is important and it would be useful if we can review it, so thank you.”

Pardon? Useful? A bit closer to absolutely essential, I think.

Overall, Lynch’s responses regarding OLC’s role are as problematic as the senators’ attention to OLC is promising. She described their role as discovering if there was a “legal framework” for a proposed executive action. It doesn’t sound much different than calls for them to be independent – but it is fundamentally different, because OLC has broad discretion in determining what the law actually means. Courts give tremendous deference to agencies in interpreting laws, and the DOJ in particular is unlikely to prosecute (or even investigate) any official who says he or she acted pursuant to the (often secret) advice of one of its own components.

It’s also worth noting that arguably the least transparent function of government – intelligence and national security – doesn’t look like it’s going to change much under Lynch. That’s surely disappointing, to us and our allies, but having access to the often-secret law that is used as legal cover for these controversial tactics is a necessary element of having any comprehensive understanding of the tactics themselves.

You can watch the first part of the hearing here, and the second here.