[JURIST] The US Justice Department will share internal legal opinions authorizing the use of harsh interrogation tactics with members of the House and Senate Intelligence Committees, Deputy Assistant Attorney General John P. Elwood told a subcommittee of the Senate Judiciary Committee on Wednesday. Elwood's comments came during a subcommittee hearing on "Secret Law and the Threat to Democratic and Accountable Government" [hearing materials; recorded video]. Elwood, head of the DOJ's Office of Legal Counsel [official website], said that a decision has not yet been made about whether to share the documents with the House and Senate Judiciary Committees.
The Bush administration has repeatedly come under fire for failing to share information with Congress and Sen. Russ Feingold (D-MI), who chaired Wednesday's hearing, offered renewed criticism of the administration and the DOJ's practices. In his opening statement [text], Feingold said:
More than any other Administration in recent history, this Administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits. It has relied increasingly on secret evidence and closed tribunals, not only in Guantanamo but here in the United States. And it has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress.In his own opening statement [text], Elwood defended the Office of Legal Counsel:
These examples are the topic of much discussion and concern, and appropriately so. But there is a particularly sinister trend that has gone relatively unnoticed the increasing prevalence in our country of secret law. ...
In a democracy, the government must be accountable to the people, and that means the people must know what their government is doing. Through the classification system and the common law, we've carved out limited exceptions for highly sensitive factual information about military operations, intelligence sources and methods, nuclear programs, and the like. That is entirely appropriate and important to protecting our national security. But even in these areas, Congress and the courts must maintain some access to the information to ensure that the President is acting in accordance with the law and the Constitution. And when it comes to the law that governs the executive branch's actions, Congress, the courts, and the public have the right and the need to know what law is in effect. An executive branch that operates pursuant to secret law makes a mockery of the democratic principles and freedoms on which this country was based.
I would like to address directly the concern that, by issuing confidential legal advice, OLC makes "secret law." It is true that, subject to the President's authority under the Constitution, OLC opinions are controlling within the Executive Branch on questions of law. However, OLC does not "make law" in the same sense that Congress or the courts do. While OLC's legal advice and analysis may inform the decisionmaking of its clients, the legal advice rarely, if ever, compels the adoption of any particular policy; rather, it remains up to policymakers to decide whether and how to act. OLC thus lacks the ability to affect private parties directly, and its legal views are not binding on the Legislative Branch, the courts, or members of the general public. If the Executive Branch adopts a policy that OLC has declared legally permissible, the policy will be public unless it is classified, and appropriate officials may be called upon to explain the policy, including its basis in law. (Classified activities are, of course, subject to review by the intelligence committees.) But effective policymaking is not possible if officials are inhibited by concerns that the advice they receive or their other internal, pre-decisional deliberations will be made public.Also during Wednesday's hearing, US Sen. Sheldon Whitehouse (D-RI) criticized the administration for its practice of modifying existing executive orders without publicly disclosing the new interpretation. Elwood defended the practice, saying that DOJ legal opinions from the 1980s support the position that the president can change executive orders. The New York Times has more.
At the same time, OLC recognizes that many of its opinions address issues of interest to the government or to the public. It is our policy to publish such opinions whenever doing so is consistent with the legitimate confidentiality interests of the President and the Executive Branch, and this publication policy is sensitive to Congress's interests in understanding the legal reasoning relied upon by executive agencies. There has historically been a time lag between when an opinion is signed and when it is considered for publication, which reflects the need for confidentiality in the course of ongoing decisionmaking. ... The Office's current approach to publication is consistent with historical practice. The publication review process has largely been completed for opinions signed in the years 1993-2000 but is ongoing for opinions signed since 2001. As a result, fewer of these more recently signed opinions have been published at this time. But during my tenure at OLC, the rate of publication has increased, and the period of time between opinion signature and opinion publication has decreased. ...
In sum, OLC recognizes the value of openness in government, which promotes public confidence that the government is making its decisions through a process of careful and thoughtful reasoning. By publishing OLC opinions when appropriate, we ensure that Executive Branch views are part of the public conversation on topics for which the Executive possesses relevant expertise. As we work to balance the values of transparency, accountability, and the confidentiality essential to good governance, our publication decisions will continue to reflect our commitment to a basic policy of openness, as well as to the important constitutional function of congressional oversight.