Expanding Access to OLC Opinions OLC opinions are

Expanding Access to OLC Opinions

OLC opinions are the Justice Department’s authoritative legal advice to the executive branch on questions central to the functioning of government.

Executive branch officials are capable of implementing, at times secretly, policy programs that could otherwise be impermissible but for unreported OLC opinions providing them with legal cover.

OLC Opinion Text on OLC Webpages (1998 -2012) Unavailable Available Department of Justice is withholding from online publication 39% of its 509 OLC opinions written between 1998 and 2012. Sunlight Foundation

“In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication … [and] the values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law. ” (emphasis added)

The Obama administration has refused to release a war on terror opinion that reportedly authorized the use of armed drones to kill U. S. citizen Al-Awlaki in Yemen.

SOLUTIONS • Accurate accounting of how many memos are issued. • Ability to determine the average wait for the release opinions. • OLC opinions should be redacted as lightly as possible. • At a minimum the titles of all opinions should be made public or at least descriptions of the opinions.

SOLUTIONS • Posted online in an easily searchable format. • Any time the executive branch disregards a federal statutory requirement on constitutional grounds, the OLC should publicly release a clear statement explaining its deviation. • Opinions should be released once the need for secrecy ends.

Making the processes, opinions, and standards of the department more transparent would also help restore the Justice Department’s tarnished credibility. - Philip Heymann Harvard Law Professor and former Director of the Justice Department’s Criminal Division