Savage and the Times had better luck last month, when someone leaked a 2010 OLC legal opinion evaluating whether the United States could legally lend support to international prosecutions for war crimes. Since the outbreak of the war in Ukraine, President Biden and other elected officials have expressed such support for International Criminal Court (ICC) prosecutions of top Russian officials for war crimes. But those statements contrast sharply with the more antagonistic posture the U.S. has often taken toward the ICC, and in fact has codified into law. Indeed, the leaked OLC memo reviews and interprets a litany of laws Congress has passed that could bar the kinds of cooperation U.S. officials now seem to advocate. So important is the memo to current understanding of what the US can do to support the ICC that the Times published it in its entirety. It would have remained secret had it not been for a leak.

Secrecy has been a hallmark of the OLC since it was created by an act of Congress in 1933 to resolve legal questions for the White House and executive branch agencies. Since its inception, the agency, known colloquially as “the Supreme Court of the executive branch,” has generated thousands of memos that have guided government conduct affecting almost all aspects of the lives of Americans and of citizens of countries in every corner of the world. Though its legal opinions shape the policies of numerous agencies—among them, the U.S. armed forces, the Central Intelligence Agency, the Department of Labor, the Internal Revenue Service, and the Social Security Administration—the OLC rarely releases its opinions on its own, and barely registers on the public’s radar.

In fact, what most Americans know of the OLC’s role came through a leak of its misdeeds. In June 2004, The Washington Post published a secret legal opinion prepared by Bush administration lawyers who had apparently greenlighted the torture of prisoners in U.S. custody. Over the next several years, investigative reporting and FOIA litigation brought by human rights organizations excavated additional OLC memos that had approved or created the conditions for the abuses that took place at CIA black sites and in U.S.-run detention facilities in Iraq, Afghanistan, and Guantánamo Bay. These so-called “torture memos” highlighted both the scope of the OLC’s role and the secrecy and impact of its highly influential legal opinions.

When leaks and FOIA lawsuits have succeeded in bringing other OLC opinions to light, those opinions have often reinforced the impression of an agency with enormous influence to shape and guide policy. And when FOIA lawsuits failed, as they often did, those failures illuminated the weakness of transparency mechanisms that are meant to promote public oversight of official decision-making. Indeed, though under the FOIA even internal deliberations can be released to the public after 25 years, the bulk of the OLC’s work before 1996 has remained hidden from view.

At the Knight First Amendment Institute at Columbia University, we have tried to push against this pervading secrecy through two lawsuits addressing the OLC’s obligations under the FOIA. In one, the Knight Institute represents Campaign for Accountability, a nonprofit watchdog that exposes corporate and government misconduct, in a challenge to the OLC’s failure to follow the FOIA’s “reading room” provision, which requires agencies to proactively disclose final legal opinions or interpretations. In the other, the Knight Institute, along with a group of scholars and Campaign for Accountability, challenged the OLC’s failure to comply with its obligation to release opinions it generated more than 25 years ago.

Eighteen months ago, then–District Judge Ketanji Brown Jackson, who was recently confirmed by the Senate for the U.S. Supreme Court, took an important step in the first of these cases toward concluding that at least one category of OLC opinion must be disclosed proactively. This category is estimated to encompass roughly one-quarter of all opinions that are written for agencies outside the Justice Department. Meanwhile, the Institute’s other lawsuit has pried loose hundreds of previously unpublished memos that were written over 25 years ago, along with an index of all the unclassified memos issued by the OLC between 1945 and 1994. That trove includes OLC writings that shaped White House and federal agency actions on war and peace, civil rights, women’s rights, digital surveillance, and many other crucial decisions in 20th-century American history. Under a settlement reached with the agency, more than 200 additional opinions will be released this spring, along with an index of classified opinions authored between 1974 and 1994.

To share these resources with journalists, historians, and the public at large, the Knight Institute has created a “reading room” on its website that now stands as the most comprehensive database of the OLC’s memos. The Reading Room includes dozens of indexes containing the titles and dates of all of the OLC’s unclassified opinions written between 1945 and February 15, 1994, and almost every opinion that OLC has published—including more than 350 opinions produced in response to the Knight Institute’s litigation. In January, the Institute also launched @OLCforthepeople, a Twitter account that further improves access to OLC materials by alerting the public each time the OLC adds an opinion to its online database—a process that generally happens without public notice. So far, @OLCforthepeople has tweeted three times, to announce the publication of two OLC opinions written in 2022 and a third that was written in 1970 but remained secret until last month.

We believe these efforts not only make the OLC’s opinions more accessible to journalists and the public than they’ve ever been but also help build a broader understanding of the OLC’s role in determining the policies and actions of a wide range of executive branch agencies. Twenty years ago, legal contortions by OLC lawyers green-lighted torture and other gross human rights violations in Iraq, Guantánamo Bay, and secret CIA prisons. That the authors of those torture memos escaped professional sanction for their misconstructions of U.S. and international law only compounded an impression of the OLC as a secretive legal shop with the power to bend or distort the law for the White House or federal agencies.

The annals of the OLC’s work over the past 88 years and the hundreds of individual opinions that the Knight Institute has excavated in its litigation paint a new and far more revealing view of this “Supreme Court of the executive branch.” It’s a view that underscores the importance of public access to the OLC’s work—not just because excessive secrecy has sometimes led the OLC astray, but because the vast majority of its opinions chronicle legal thinking about some of the most challenging political and social questions the country has faced over the past nine decades, and because the way the OLC answers legal questions shapes presidential actions and policy decisions that reach from the international arena to the most mundane levels of agency operation and public life. The OLC’s opinions are part of the American story, and all of us—journalists, historians, lawyers, policymakers, and the public at large—will benefit from this new window on its work.

“Since its establishment almost a century ago, the Office of Legal Counsel has played an immensely important role in shaping government policy—and especially in defining the separation of powers between Congress and the executive branch,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “These long-withheld opinions shed light on the government’s understanding of executive privilege at some pivotal historical moments, and they also provide vital context for contemporary debates.”

The documents published today include:

• Immunity of Presidential Assistants from being required to testify before Congressional Committees (March 15, 1972)

• Executive privilege (April 10, 1972)
• Power of Congressional Committee to compel appearance or testimony of Presidential Assistant (April 10, 1972)
• Presidential Immunity from Coercive Congressional Demands for Information (July 24, 1973)
• Power of the House of Representatives to demand criminal investigation files in connection with impeachment proceedings (October 29, 1973)
• Administration’s Policy on Assertion of Executive Privilege (June 8, 1977)
• Suing to Enjoin the Enforcement of a Senate Committee’s Subpoena (January 16, 1981)
• Executive Privilege – Reagan Memorandum (April 6, 1982)
• Executive Privilege (April 19, 1982)
• Confidentiality of communications between the President and his closest advisers (February 27, 1984)

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to this request, the Institute filed suit, Francis v. DOJ, on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994, and released 230 of the opinions listed on those indexes. It also agreed to disclose a list of classified OLC opinion titles written between 1974 and February 15, 1994.

This settlement does not address the OLC’s obligations to publish contemporary opinions. The Knight Institute represents Campaign for Accountability in a separate lawsuit challenging the OLC’s failure to disclose its opinions under the Freedom of Information Act’s “affirmative disclosure” provisions. In 2020, then-Judge Ketanji Brown Jackson issued a decision allowing the case to move forward with respect to one especially important category of OLC opinions: opinions that resolve disputes between federal agencies. That case is currently pending before Judge Jia M. Cobb in the federal district court in Washington, D.C.

“Except in the most extraordinary circumstances, the public should have access to the OLC’s formal opinions when they’re written, not decades later,” said Alyssa Morones, legal fellow at the Knight First Amendment Institute. “Congress and the Biden administration shouldn’t wait for the courts to address the OLC’s transparency obligations.”

The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and is being updated with the hundreds of opinions produced to date in Francis v. DOJ. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its own online database—a process that generally happens without public notice. 

Access the Knight Institute’s OLC Reading Room here.

Read more about Francis v. DOJ here.

Read more about Campaign for Accountability v. DOJ here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

“Since its establishment almost a century ago, the Office of Legal Counsel has played an immensely important role in shaping government policy—including on matters relating to war, foreign policy, and the separation of powers,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “These opinions have been withheld for far too long, but we’re pleased to be able to publish them today.”

The documents published today address legal questions raised by the United States’s involvement in World War II and the Korean and Vietnam wars, as well as military actions in Libya and the treatment of prisoners of war. The documents include:

• Termination of plant seizures (August 18, 1945)
• Claims arising out of the loss of or damage to property deposited by alien enemies with United States Marshals (December 12, 1945)
• Determinations regarding cessation of hostilities, termination of the war and of the emergency (December 21, 1945)
• Duties and responsibilities of the FBI, as affected by Proclamation of Cessation of Hostilities (January 21, 1947)
• German specialists and scientists in the United States under the protective custody of the Joint Intelligence Objectives Agency (December 3, 1947)
• German scientist program of the armed service departments (February 10, 1948)
• The power of the President to send American troops to Palestine (April 7, 1948)
• Trial of American citizens before courts established by the American Military Government in Germany (February 4, 1949)
• Possible Removal of Japanese From Alien Enemy Classification (January 11, 1952)
• Use of Troops in Vietnam and Cambodia (April 12, 1975)    
• Retaliation for Soviet Attack on Korean Airliner (September 6, 1983)
• War Powers Resolution: Detailing of Military Personnel to the CIA (October 26, 1983)
• Treaty Obligations Governing Prisoners of War (October 28, 1983)
• War Powers Resolution and Military Action Against Libya (January 13, 1986)
• Legal Assessment of the War Powers Resolution National Security Council (June 9, 1993)
  
  

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to its request, the Institute filed suit, Francis v. DOJ, on behalf of five scholars, the Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994, and released 230 of the opinions listed on those indexes. It also agreed to disclose a list of classified OLC opinion titles written between 1974 and February 15, 1994.

This settlement does not address the OLC’s obligations to publish contemporary opinions. The Knight Institute represents Campaign for Accountability in a separate lawsuit challenging the OLC’s failure to disclose its opinions under the Freedom of Information Act’s “affirmative disclosure” provisions. In 2020, then-Judge Ketanji Brown Jackson issued a decision allowing the case to move forward with respect to one especially important category of OLC opinions: opinions that resolve disputes between federal agencies. That case is currently pending before Judge Jia M. Cobb in the federal district court in Washington, D.C.

“Except in the most extraordinary circumstances, the public should have access to the OLC’s formal opinions when they’re written, not decades later,” said Alyssa Morones, legal fellow at the Knight First Amendment Institute. “Congress and the Biden administration shouldn’t wait for the courts to address the OLC’s transparency obligations.”

The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and is being updated with the hundreds of opinions produced to date in Francis v. DOJ. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its own online database—a process that generally happens without public notice. 

Access the Knight Institute’s OLC Reading Room here. 

Read more about Francis v. DOJ here.

Read more about Campaign for Accountability v. DOJ here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“These memos chart the federal government’s evolving understanding of its own responsibility and authority over the course of the civil rights movement,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “They illuminate some of the most pivotal moments of that era, including President Eisenhower’s support for the Little Rock Nine, President Kennedy’s preparations for the March on Washington, and President Nixon’s opposition to busing.”

The 24 documents released today span five presidential administrations—those of Truman, Eisenhower, Kennedy, Johnson, and Nixon—and they focus on civil rights issues that arose in various contexts, including schools, airports, and workplaces. Among the documents the Knight Institute is publishing today are:

• A memo titled Opinion of the Attorney General of Kentucky on racial integration of its public schools and dated September 24, 1956. The memo analyzed the exclusion of Black students from two segregated Kentucky schools with the support of the state attorney general on the purported basis that enrollment was “illegal” until the local school boards created a formal integration plan. The memo observed that the Kentucky attorney general’s opinion supporting the exclusion of the students was likely rooted in political opposition to integration. “Faced with a choice between principle and expediency,” the opinion explained, the Kentucky attorney general “appears plainly to have selected the latter course.”  
• A memo titled Designation of White Citizens Councils and dated February 26, 1957. This opinion considered whether the attorney general had authority to designate White Citizens Councils as “totalitarian, fascist, communist or subversive” groups under Executive Order 9835. The opinion described the “deep and aggressive hostility to the Fourteenth and Fifteenth Amendments” expressed by members of White Citizens Councils, but conveyed concerns about “labeling as subversive, and classing with Communists and Fascists, so large and otherwise loyal a group of individuals as compose the membership of the Citizens Councils.”
• A memo titled Policy prohibiting officials and employees of the Federal Government or of the Government of the District of Columbia from appearing before segregated groups, dated August 12, 1964. The opinion concluded that the government had the authority, and potentially the legal obligation, to prohibit its employees from appearing before segregated groups. The OLC compared the participation of federal employees in activities promoting segregated groups to a court’s enforcement of racial covenants, which the Supreme Court concluded violated the Fourteenth Amendment in Shelley v. Kraemer.

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to its request, the Institute filed suit on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994. It has also agreed to release hundreds of opinions reflected on those indexes. 

“Despite the historical and political significance of OLC memos, the government keeps the majority of these opinions secret, which means the public is in the dark about the government’s interpretation of laws relating to a range of issues, including national security, war, immigration, and civil rights,” said Alyssa Morones, legal fellow at the Knight Institute. “It shouldn’t take a lawsuit to unearth memos that should have been publicly released as a matter of course decades ago.”

The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and the approximately 350 opinions produced to date in two FOIA lawsuits brought by the Knight Institute. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its online database—a process that generally happens without public notice. So far, @OLCforthepeople has tweeted three times, to announce the publication of two OLC opinions written in 2022 and a third that was written in 1970 but remained secret until April of this year.

Access a complete annotated list of the OLC civil rights opinions released today here.

Access the Knight Institute’s OLC Reading Room here.

Read more about the Knight Institute’s litigation, Francis v. DOJ here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“These two memos shed new light on one of the most momentous clashes in the history of the First Amendment, and on a case that helped define press freedom,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “We’re glad these historically important documents will now be available to scholars, journalists, advocates, and others.”

The documents released today were written immediately before and soon after the Supreme Court issued its decision in New York Times v. United States. They illuminate the Nixon administration’s effort to halt the publication of the Pentagon Papers—a secret history of the Vietnam War—and its effort to prosecute those responsible for their publication. The documents the Knight Institute is publishing today are:

• A memo from OLC lawyer Frederick W. Lambert to Robert Keuch, then the head of what is now known as the Justice Department’s National Security Division, titled Permanent Injunctive Relief Against the Publication of the Defense Department Vietnam Study by the New York Times, and dated June 16, 1971. William Rehnquist, who was then the Justice Department lawyer in charge of the OLC, and who was responsible for evaluating the Justice Department’s likelihood of obtaining an injunction against the papers’ publication, was copied. The memo opined that the attorney general did not need to rely on specific statutory authorization to seek an injunction against the continued publication of the Pentagon Papers, but would likely need to demonstrate “irreparable damage to the national security” in order to succeed. Lambert suggested that the Justice Department argue that the publication of “top secret” documents would be sufficient to show irreparable damage, which, if accepted, would have given the government broad power to obtain prior restraints against reporting about national security. Read the document here. 
• A memo from OLC lawyer Thomas E. Kauper to John Dean, then Nixon’s White House counsel, titled Criminal Prosecution for Disclosure of Classified Information Relating to Defense Department Vietnam Study, and dated July 28, 1971. The memo, written shortly after the Supreme Court’s decision allowing the publication of the Pentagon Papers to continue, analyzed the Justice Department’s possible paths to “prosecuting government employees, private citizens, reporters, and newspaper entities” involved in the papers’ publication. Kauper concluded that newspapers might be subject to criminal liability under 18 U.S.C. § 793, and potentially 18 U.S.C. § 2 and 18 U.S.C. § 371, although ultimately the Justice Department only prosecuted Daniel Ellsberg and Anthony Russo. Read the document here. 

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to its request, the Institute filed suit on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994. It has also agreed to release hundreds of opinions reflected on those indexes. 

“Despite the historical and political significance of OLC memos, the government keeps the majority of these opinions secret, which means the public is in the dark about the government’s interpretation of laws relating to a range of issues, including national security, war, immigration, and civil rights,” said Alyssa Morones, legal fellow at the Knight Institute. “It shouldn’t take a lawsuit to unearth memos that should have been publicly released as a matter of course decades ago.”

The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and the approximately 350 opinions produced to date in two FOIA lawsuits brought by the Knight Institute. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its online database—a process that generally happens without public notice. So far, @OLCforthepeople has tweeted three times, to announce the publication of two OLC opinions written in 2022 and a third that was written in 1970 but remained secret until April of this year.

Access the Knight Institute’s OLC Reading Room here.

Read more about Francis v. DOJ here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

“Despite their importance, the majority of the OLC’s legal opinions are secret, which means the public is in the dark about the government’s interpretation of laws relating to national security, war, immigration, civil rights, and more,” said Anna Diakun, Staff Attorney at the Knight Institute. “These memos should be made public as a matter of course, and certainly not withheld for decades. We’re pleased with today’s release and look forward to similar releases of memos from other years.”

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. In recent years, OLC memos have provided the legal foundation for many controversial government policies, including those relating to the torture of prisoners, warrantless wiretapping, and the use of drones to carry out extrajudicial killings overseas.

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. Recent legislation provides that the OLC cannot rely on the “deliberative process” privilege with respect to memos that were written more than a quarter-century ago. When the OLC failed to release any opinions in response to its request, the Knight Institute filed a lawsuit, Francis v. DOJ, on behalf of five scholars, Campaign for Accountability, and the Institute. Since August, the Knight Institute has been working with the OLC to secure the release of those opinions. The opinions posted today, all written in 1974, mark the first in a series of rolling productions the OLC will make in this case.

Today’s release includes 96 legal opinions as well as an index of all unclassified OLC opinions written in 1974. The opinions range from short one-page responses to in-depth legal analyses, and together total 435 pages. They cover the final year of President Nixon’s administration and concern the use of the subpoena power against sitting presidents, the scope of mandatory drug testing programs, wiretapping of U.S. citizens abroad, First Amendment protections for U.N. officials, and the appointment of women to military service academies. They are not only rich historical texts; they form a system of precedent within the executive branch and are still relied on today.

“The OLC should not be creating a system of controlling legal precedent that is hidden from the public for decades,” said Stephanie Krent, Legal Fellow at the Knight Institute. “Legal opinions that constitute the government’s ‘working law’ should be made public presumptively, and withheld only in very narrow circumstances.”

The litigation that led to today’s disclosure is part of a broader effort on the part of the Knight Institute to vindicate the public’s right of access to the OLC’s formal legal opinions. In another case, the Institute is arguing that the Freedom of Information Act requires the OLC to publish its legal opinions presumptively, even in the absence of any FOIA request seeking their release. In that case, Campaign for Accountability v. DOJ, the Institute contends that the OLC’s formal opinions are the government’s “working law” and are therefore subject to FOIA’s affirmative disclosure provisions.

The opinions published today are available in a Knight Institute reading room here. 

For more information, contact: Lorraine Kenny, Communications Director, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org

“The executive branch’s reliance on secret law leaves the public in the dark about the legal framework the government uses to make decisions about national security, war, immigration, civil rights, and more,” said Alex Abdo, the Knight Institute’s Litigation Director. “The OLC’s claim that these crucial documents are beyond the reach of the FOIA is wrong.”

As the executive branch’s legal arbiter, the OLC issues legal opinions governing the full-range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. Nevertheless, only a fraction of its opinions has been published; the rest remain “secret law,” inaccessible to historians and the public alike.

“Office of Legal Counsel opinions not only help shape current policy, they serve as precedent for future executive actions,” said Daniela Nogueira, a Knight Institute Legal Fellow. “Without access to these opinions, including those issued decades ago, the American public cannot fully evaluate the legality of current executive branch policies.”

In other litigation, the OLC has taken the position that its legal opinions are categorically exempt from the Freedom of Information Act because they are “deliberative” and also protected by the attorney-client privilege. In 2016, however, Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old. The Knight Institute’s request asks for opinions that are more than 25 years old, and so the litigation will likely focus on whether the OLC’s opinions are protected by the attorney-client privilege.

“As a historian, I know all too well how this system of secrecy curtails understanding of some of our country’s most consequential executive actions,” said Mary L. Dudziak, the Asa Griggs Candler Professor of Law at Emory University School of Law and a plaintiff in the lawsuit. “One presidential action builds on another. The secrecy of this precedent is especially concerning when it comes to the power to send U.S. troops into harm’s way.”

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request. Today’s lawsuit asks the court to enforce FOIA by requiring the OLC to process the request.

In addition to Professor Dudziak, the plaintiffs include Matthew J. Connelly, Professor in the Department of History at Columbia University; Megan Ming Francis, Associate Professor in the Department of Political Science at the University of Washington; Mathew L. Jones, James R. Barker Professor of Contemporary Civilization in the Department of History at Columbia University; Hiroshi Motomura, Susan Westerberg Prager Distinguished Professor of Law at the University of California, Los Angeles School of Law; and the Campaign for Accountability, a nonprofit, nonpartisan organization that uses litigation, research, and advocacy to hold public officials accountable.

Lawyers on the case include Abdo, Nogueira, and Jameel Jaffer of the Knight Institute, and Katherine George of Johnston George LLP.

Read the complaint here.

For more information, contact: Lorraine Kenny, Communications Director Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org, 646-745-8510

The Office of Legal Counsel is the component within the Department of Justice that drafts binding legal opinions for federal agencies. These opinions shape the work of the executive branch, which treats the final, written documents as it would Supreme Court opinions. Unlike the Supreme Court, though, the office is staffed by executive branch lawyers, and many of its opinions are carefully guarded from public scrutiny rather than made generally available. At times, the OLC has said this secrecy is necessary because disclosure may discourage policymakers from consulting the office, and because the threat of disclosure might lead agencies to request informal, unwritten advice instead of formal, written opinions. Often, though, the OLC’s resolution of an issue is the government’s last word on the matter since secrecy and justiciability doctrines can prevent the issues on which the OLC advises from ever being heard in a court of law. Denying the public access to a body of secret opinions that shape government policy, and that reflect the government’s understanding of its own power and the contours of individual rights, is fundamentally antidemocratic. Concerns around the lack of transparency in the OLC’s work have only grown in recent decades, as OLC opinions supplied the foundation for legally questionable or even lawless policies. When information about these opinions is disclosed, it offers a rare glimpse into the government’s understanding of its own power—and the opportunity for the public to contest and protest the OLC’s conclusions.

The case that led to the production of these documents, Francis v. Department of Justice, was filed by the Knight Institute, where I work, four years ago on behalf of five prominent historians, Campaign for Accountability, and the Knight Institute itself. The Institute and the Justice Department reached a settlement in the case in 2021, and the Justice Department has since released more than 500 opinions as well as indices listing all of the unclassified opinions written by the OLC between 1945 and Feb. 15, 1994. Some of the recently released opinions address the power of the executive branch to remedy segregation; Congressional power under the War Powers Resolution; and the Justice Department’s decision not to bring criminal charges against newspapers and journalists who published the Pentagon Papers. All of the now-public opinions are available in the Knight Institute’s online OLC Reading Room.

The disclosure of the classified opinion index is a significant step forward, shedding new light on the most sensitive questions considered by OLC from the mid-1970s to the present day. The secrecy around OLC opinions means that it’s remarkably hard to glean the areas on which the OLC is rendering advice—many of the OLC’s memos have been shrouded in “deep secrecy,” to use David Pozen’s phrase. As my colleague Jameel Jaffer has written, this secrecy is unusual, in part, because agencies generally have an affirmative obligation to publish their final opinions, orders, policies, and interpretations under FOIA’s “reading room” provisions; this obligation exists, in the Supreme Court’s words, due to the “strong congressional aversion” to “secret law.” Despite norms of publication and the importance of the Office’s mandate, the public has simply never been able to know how much of the OLC’s work influenced executive branch policy, or precisely what topics the government kept secret. When even the existence of a legal opinion is secret, the public can’t know what knowledge is being withheld from it.

The disclosure of titles alone reveals a great deal about the substance of OLC’s work during this time period. Some of the topics are unsurprising given the office’s longstanding enmeshment in national security matters. There are a number of titles that demonstrate the office’s involvement in developing Cold War surveillance and counterintelligence programs, particularly in developing electronic surveillance protocols in Berlin. Others involve the active monitoring of the Communist Party USA and the American Indian Movement, or advice on records associated with individuals who had been investigated for their ties to communist or socialist causes—including FBI files on the playwright Bertolt Brecht, philosopher Corliss Lamont, and actor Larry Parks.

Other memoranda written by the office from the 1970s to 1990s cover more unexpected topics that stray further from the national security and interagency work that many associate with the OLC. A number of memoranda pertain to immigration, advising on people unlawfully entering the United States from Mexico, the repatriation of Cuban nationals, as well as political affiliations and visa ineligibility. Likewise, the office consulted on the use of “riot control agents” (chemical irritants such as tear gas), the legality of using armed forces in Haiti, and the political status of Micronesia, which was engaging in talks with the United States on the possibility of self-government throughout the 1960s and 1970s.

Perhaps most notably, dozens of the opinions pertain to electronic surveillance. These titles highlight the OLC’s role advising various agencies on electronic surveillance throughout the 1970s, 80s, and 90s. Alongside past opinions, these titles suggest that intelligence agencies within the executive branch were actively exploring their authority to carry out technologically enhanced surveillance during this time. The titles illuminate a critical period in the evolution of surveillance law—the period in which the country was grappling with rapid technological change, the effects of new technology on international relations and surveillance (for instance, it authored a 1975 memorandum on the Palestinian Liberation Organization and Electronic Surveillance), the enactment of FISA, the establishment of the Foreign Intelligence Surveillance Court, etc. During this period, the OLC was contending with the limitations that the law could impose on these agencies’ intelligence-gathering.

Obviously, there is only so much we can learn from the titles alone. Again, though, the disclosure of the titles means that journalists, researchers, and others can now request the opinions themselves—and the OLC will be required by law to process the memos for release, redacting only those portions that fall within the scope of enumerated FOIA exemptions. In that respect, the index opens important new avenues for advocacy and accountability.

Take for example the debt ceiling. As the debt ceiling crisis looms, legal scholars (and reportedly the White House) are once again considering whether the president can invoke the Fourteenth Amendment to raise the borrowing limit singlehandedly. One might naturally want to know what the Office of Legal Counsel, the so-called “Supreme Court of the executive branch,” has to say about this legal theory. But we don’t know.

Thanks to a public records request brought by Talking Points Memo, what we do know is that the OLC has some relevant advice dating back to the Obama administration. None of these opinions, though, have been publicly released.

This knowledge gap isn’t unique to that area of law.

As another example, last April, the New York Times’ Charlie Savage reported that a 2010 OLC opinion on U.S. assistance to the International Criminal Court was informing the Biden administration’s response to atrocities in Ukraine. Even though the opinion had shaped parts of foreign policy for over a decade, the OLC never published it, and no one outside the federal government knew what the opinion said until the Times obtained it in 2022.

How does the system work? How should it?

The OLC, a small but powerful office within the Justice Department, drafts binding legal opinions that shape the policies of federal agencies and guide government conduct affecting the lives of people in the United States and around the world. Although the OLC has pledged to be transparent about its legal decisions, it has historically released only a fraction of the opinions it writes. Its lawyers typically argue, as they did when responding to the Talking Points Memo FOIA request, that its opinions are protected by the attorney-client privilege and the deliberative process privilege.

The Knight Institute, where I work, has much to say about that theory (in short, it’s wrong), but at least for now, this means that the public’s knowledge about these important legal opinions depends on the OLC’s selective disclosures, leaks, and the work of intrepid FOIA requesters and litigators. All of this is made more problematic because the OLC does not proactively publish an index of opinions, which means the public is in the dark about what opinions even exist.

That’s what makes today’s release of a new index of unclassified OLC opinions written between 1998 and 2019 so remarkable. The OLC published a version of this index several years ago in response to a records request from the Project on Government Oversight, but that version was heavily redacted and incomplete. In 2020, the Project on Government Oversight sued to force the office to provide a more accurate and less-redacted index, and last year, the OLC agreed to take a fresh look.

The new index provides a fuller view of the OLC’s work over the last twenty years. Coupled with indexes that the OLC released in response to FOIA litigation brought by the Knight Institute, we can now see a clearer picture of the office’s work in the decades since it was established in 1933 (Strangely, while the 2010 ICC opinion is accounted for in the index, the debt ceiling opinion is not). Under a settlement in the Knight Institute’s litigation, the OLC released indexes of its unclassified opinions written between 1945 and February 15, 1994. It also published 230 new opinions from that time, addressing, among many other issues, questions relating to the Pentagon Papers, the civil rights movement, presidential war powers, and executive privilege. As part of the same settlement, the Justice Department will soon give us an index of its classified opinions—though of course it remains to be seen how redacted that index will be.

There is no doubt that a tremendous amount of effort went into the creation of these new indexes, and journalists, historians, academics, and members of the public will benefit from their release. These recent strides toward transparency should not be discounted—and they also should not be the OLC’s last. Most of the opinions listed on these indexes are still unpublished, and even now the OLC has not published any indexes for the years after 2019. Scholars, civil society advocates, and lawmakers have called for legislative fixes that would require the OLC to proactively publish its opinions (and indexes of those opinions). As those proposals work their way through the Hill, the OLC should not lose sight of the work it can continue to do itself to make the office more transparent, and more publicly accountable.

In his letter to Burger, Bennett maintained that BOP personnel sometimes needed ways of getting truthful information from prisoners—for example, to determine whether they needed particular kinds of treatment or whether prison rules had been broken. The BOP had used sodium amytal in the past, he said, to find out whether an inmate was faking illness to avoid having to participate in a prison’s “rehabilitation program.” In one case at Terre Haute, a “suspected malingerer” was given an injection of sodium amytal and then interviewed by a psychiatrist. Through this procedure, “malingering was established.” The problem was that “the inmate was very agitated because he had not given his consent and threatened to sue the doctor for malpractice.”

The OLC addressed Bennett’s question in a six-page legal opinion signed by J. Lee Rankin, the assistant attorney general in charge of the office. (Two years later, Rankin became the solicitor general.) Rankin wasn’t unsympathetic to Bennett’s request. He noted that “the treatment and supervision of prisoners is a difficult and exacting process” and that the necessity of controlling the prison population presents a “continuous challenge.” Prison officials, he wrote, are “assumed to have broad authority in the administration of accepted medical treatment and procedures to prisoners committed to their custody.” But he observed that the authority of prison officials is not without bounds. He quoted Justice Robert Jackson’s concurring opinion in Skinner v. Oklahoma (1942), in which the Supreme Court invalidated a statute that authorized the compelled sterilization of “habitual offenders”:

There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority—even those who have been guilty of what the majority defines as crimes.

Rankin’s opinion was made public only recently. It was one of several hundred OLC opinions that the Justice Department turned over last year to settle a Freedom of Information Act lawsuit brought by the Knight First Amendment Institute at Columbia University, which I direct.1 1. The Knight Institute brought the suit with the Campaign for Accountability, a nonpartisan advocacy organization, and the historians Matthew J. Connelly, Mary L. Dudziak, Megan Ming Francis, Matthew L. Jones, and Hiroshi Motomura.But during the seven decades that passed between the time Rankin wrote the opinion and the time it was released, the question of what measures government agents may lawfully take to compel prisoners to talk arose again.

Soon after the September 11 attacks, the CIA asked the OLC what interrogation methods it could use against the suspected al-Qaeda leader Zayn al-Abidin Muhammad Husayn—known as “Abu Zubaydah”—whom the agency had imprisoned at a black site in Thailand. FBI agents had been interrogating Abu Zubaydah and believed they had established a rapport with him. The CIA was convinced, however, that the use of what it called “enhanced interrogation techniques” could compel him to share more information about the attacks and other al-Qaeda plans.

On August 1, 2002, the OLC issued a legal opinion drafted by John Yoo (now a law professor at Berkeley) and signed by Jay Bybee (now a federal judge) that endorsed a collection of sadistic methods ranging from “walling” and “stress positions” to “sleep deprivation” and “the waterboard”—methods the CIA ended up using not only on Abu Zubaydah but on other prisoners as well.2 2. See Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, December 9, 2014.

The OLC document authorizing the torture of Abu Zubaydah was styled as a legal opinion, but it was an embarrassment to the genre, twisting both the facts and the law to evade statutory prohibitions against the brutal treatment of prisoners. Another opinion issued by the OLC that same day argued that the prohibition against torture applied only to an extremely narrow range of practices—those causing the kind of pain associated with “organ failure, impairment of bodily function, or even death”—and added that the president had constitutional authority to override even that prohibition.3 3. For the text of both memos, see The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel (Cambridge University Press, 2005).

In testimony to Congress, one prominent legal scholar called the opinions “an ethical train wreck”: “I believe it is impossible that lawyers of such great talent and intelligence could have written these memos in the good-faith belief that they accurately state the law.”4 4. David Luban, Senate Judiciary Committee, May 13, 2009.A later investigation by the Justice Department’s Office of Professional Responsibility found that Yoo and Bybee had committed professional misconduct—“intentional” professional misconduct, in the case of Yoo—by failing “to exercise independent legal judgment and render thorough, objective and candid legal advice.”5 5. The Justice Department later overruled this conclusion but still conceded that the two lawyers had demonstrated “poor judgment.”

There was an era in which the OLC was sometimes described as the “constitutional conscience” of the executive branch.6 6. See Cornelia T.L. Pillard, “The Unfulfilled Promise of the Constitution in Executive Hands,” Michigan Law Review, Vol. 103, No. 4 (February 2005).It’s difficult to say whether it deserved this label, because so much of its work is secret. The Freedom of Information Act requires executive agencies to publish their interpretations of the law, redacting them only as necessary to protect privacy, national security, or other specific, identified interests. In practice the OLC publishes its opinions selectively, justifying this mainly with the dubious argument that they are “deliberative” in character even when they reach conclusions that bind other federal agencies. The result is that we have access to only a part of the OLC’s voluminous oeuvre—and we don’t know what we don’t know. Most of the OLC’s old opinions have never been published, though many of them still shape government policy today. And while the OLC has written fewer opinions in recent years, many of these are secret, too.7 7. The Biden administration’s OLC has published eighteen of its own opinions—but out of how many, we don’t know. Those opinions address issues including Congress’s entitlement to a former president’s tax returns, the authority of the secretary of education to cancel student loans, and the authority of the Defense Department to cover the expenses of service members who must travel to obtain abortions. Notably, none of the published opinions addresses issues relating to national security.The Abu Zubaydah opinion was published only after the ACLU spent years litigating for its release.8 8. I was an attorney at the ACLU at the time and co-led the litigation.

Still, to read Rankin’s opinion is to begin to understand why some might once have associated the word “conscience” with an office that in recent years has been known principally for green-lighting torture, mass surveillance, and extrajudicial killings. One of the many defects of the OLC’s Abu Zubaydah opinion was its credulousness—it accepted unquestioningly the CIA’s assertions about the way the proposed interrogation methods would be used, what risks they would pose to the prisoner, and whether they would be effective. But Rankin doesn’t take as a given that sodium amytal and similar drugs actually work. He briefly reviews the available evidence. He quotes one authority: “The term ‘truth serum,’ like ‘lie-detector,’ is a misnomer. There is no specific which will cure or reveal deception—no drug which will infallibly induce truth.” Such drugs could at most be relied on to induce “a state of mind…whereby an individual’s capacity to…choose those [thoughts] to which he desires to give utterance is inhibited.” Rankin doesn’t reach a firm conclusion, but he writes, “The degree of reliability which can be ascribed to the result of the use of such drugs is open to serious question.”

Where Yoo and Bybee’s reasoning is sophistic, myopic, and rigged, Rankin’s is straightforward, considered, skeptical. At one point Rankin turns to the question of whether the involuntary administration of sodium amytal would invade a prisoner’s right of privacy. He writes:

Although the drug application would lack the physical discomfort of the rack and the screw, it nevertheless constitutes a method of third degree which could have lasting consequences beyond physical pain.

Other differences are striking as well. Yoo and Bybee appear to assume that the authority they extend to the CIA will be used exclusively in laboratory-like conditions and only against the one prisoner. Rankin is unwilling to make similar assumptions, and so he concerns himself with the “oppressive uses to which the practice” proposed by the BOP could be put: “If the technique were considered acceptable in detecting malingering, would not its use be even more inviting in solving prison crimes or infractions?” And, he asks, why would we stop there?

Aside from any dramatic quality, could it not be argued that continuous insight into the thought processes of all of the prisoners would permit the prison authorities to take greater and more effective precautionary measures against disorder and worse, and to better plan for rehabilitation?

Rankin writes that “these ends are pleasant in contemplation,” but he snaps quickly out of his reverie: “The price in terms of personal degradation is higher than the law allows.”

It hardly needs to be said that the question presented to Yoo and Bybee was very different from the one presented to Rankin, even if both questions concerned the permissibility of forcing prisoners to talk. The CIA is not the BOP, terrorism is not malingering, and a black site is something different from a federal prison. We don’t know how Yoo and Bybee would have answered the question that was put to Rankin, and we don’t know how Rankin would have answered the one that was put to Yoo and Bybee.

And yet it does seem fair to say, based on available evidence, that these lawyers had radically divergent understandings of their responsibilities. Yoo and Bybee appear to have thought of themselves chiefly as lawyers for the Bush administration, and so the question they put to themselves, when the CIA sought permission to use methods the US had once condemned as torture, was whether the law could be made to accommodate those methods even if they were, on their face, grotesque and even freakish and precisely what the laws in question were meant to forbid. (“You would like to put Abu Zubaydah in a cramped confinement box with an insect” is how Yoo and Bybee describe one of the CIA’s proposals—a proposal that they go on to endorse.)

Rankin seems to have understood his obligations very differently. His opinion is attentive to the interests of the agency he is advising, yet its final allegiance is not to the agency’s policy preferences but to deeper principles that structure our government and society. His analysis is an effort to discern what is sometimes referred to as the “best” view of the law. Rankin concludes with a quote from Justice Hugo Black’s opinion in Chambers v. Florida (1940), a case in which Thurgood Marshall persuaded the Supreme Court to overturn the murder convictions of four black men whose confessions the police had procured through coercion and intimidation:

We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws. The Constitution proscribes such lawless means irrespective of the end.

Today the OLC instructs its lawyers to provide their clients with the “best understanding of what the law requires”—to provide “an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.” On paper, at least, Rankin’s view of the OLC’s mandate has prevailed. Whether it has prevailed in reality is less clear. How OLC lawyers are actually reconciling their loyalty to the administration they serve with fidelity to the rule of law is, in present circumstances, mostly unknowable.

For at least two decades transparency and human rights advocates have been calling on the OLC to publish its final legal opinions as a matter of course—not just its historical opinions, but its contemporary ones as well—arguing that it is antidemocratic to deny the public access to opinions that shape government policy, delineate the boundaries of government power, and establish the scope of individual rights. After conferring with constitutional scholars and litigators as well as many former OLC lawyers, the American Constitution Society issued a statement two years ago urging the OLC to release, among other things, a comprehensive index of its opinions. Last year Senators Patrick Leahy and Tammy Duckworth introduced a bill that would subject the OLC to additional transparency requirements.

For now, though, what the public knows about the OLC’s work is still almost entirely up to the OLC itself. This is a shame. Recent history makes all too clear how profound the costs to our society can be when the OLC subordinates constitutional principle to political expedience. It should not be a mystery to the public how the OLC is interpreting the law, or whether it is doing the work we need it to do.

The amendment would require the Justice Department to publicly disclose Office of Legal Counsel (OLC) opinions, with limited exceptions to protect classified information. Sometimes dubbed the “Supreme Court of the executive branch,” the OLC issues legal opinions that bind federal agencies on matters of public concern, and it produces authoritative law on issues ranging from warrantless surveillance to the torture of detainess, federal employee benefits, and more. Although these opinions often implicate questions of overwhelming public concern, most remain secret. The November 9 letter calls on Congress to intervene to ensure that the OLC adopts a “bona fide presumption of transparency.”

The letter is part of a larger effort by the Institute to shed light on the OLC’s secret law. Over the past several months, the Institute has made public hundreds of OLC opinions obtained as part of a landmark legal settlement in a lawsuit seeking disclosure of OLC opinions written more than 25 years ago. As a result of this settlement, the Institute currently houses a comprehensive public database of opinions written by the OLC to date, and also launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its own online database—which generally happens without public notice.