Free Speech Group Sues To Expose Secret Laws

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Kevin Daley Supreme Court correspondent
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Lawyers for the Knight First Amendment Institute appeared in a federal court in Washington Tuesday to argue the federal government must disclose so-called “secret law” or the collection of legal decisions the federal government does not release to the public.

A division within the Department of Justice called the Office of Legal Counsel (OLC) is responsible for producing opinions which resolve disputes about executive power, that is, the authority of the president, cabinet departments, and executive agencies. These controversies can range from benign interagency disputes to wiretaps and drone strikes. Many of these decisions are never made public.

The Knight Institute brought a lawsuit against the Department of Justice, arguing the government must make OLC decisions accessible in a public archive.

“Our nation was founded upon the ideal of an open democracy, yet the Office of Legal Counsel maintains a body of secret law,” said Daniel Stevens executive director of the Campaign for Accountability, which joined the Knight Institute’s lawsuit. “This is inimical to our values as Americans.”

Writing at Just Security, the Knight Institute’s executive director Jameel Jaffer explains that the Office of Legal Counsel often has the final word about the scope of executive power. Though some of these disputes are eventually adjudicated in the courts, as a general matter, OLC issues a final and effectively definitive decision about federal power.

What’s more, many of the decisions it issues are not publicly released or catalogued. Often, they can only be obtained through a Freedom of Information Act (FOIA) request, which might last years.

“[T]he OLC has accumulated, over the years, a body of legal opinions that have the force and effect of law but whose very existence is concealed from the public,” Jaffer writes. “It’s impossible to estimate the size of this hidden corpus.”

OLC argues its opinions are merely legal advice and are therefore not subject to blanket disclosure. In fact, in many instances their opinions may be entitled to executive privilege, in order to protect the president’s ability to receive candid advice on delicate or secret matters.

But as Jaffer points out, former OLC officials concede that, in practical terms the Office’s decisions are authoritative and carry precedential weight.

“OLC opinions are controlling on questions of law within the Executive Branch,” wrote Steven Bradbury, who led the office during the George W. Bush administration, in a 2005 memo.

OLC itself admits that it’s advice, even if it is merely advice, is “authoritative” within federal agencies.

The office makes many of its opinions publicly available on an ongoing basis, though the Knight Institute say these selective disclosures do not serve the public interest.

“The FOIA entitles the public to know what the law is, not just what the OLC wants it to know about what the law is,” Jaffer wrote.

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