New Office of Legal Counsel Transparency Bill Would End Secret Law by OLC Opinion

Official sign depicting entrance to Department of Justice's Office of Legal Counsel
Sign outside the Department of Justice’s Office of Legal Counsel

Senator Duckworth, along with Senator Leahy, just introduced the Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act), a bill to require the Department of Justice to publicly disclose all Office of Legal Counsel opinions, with appropriate exceptions for classified material.

Demand Progress has long advocated for such transparency, and applauds the efforts of  Senators Duckworth and Leahy to introduce legislation that would protect a foundational principle in our democracy: the right of Congress and the public to know how the laws of the land have been implemented by the executive branch. 

“The Office of Legal Counsel has shaped lasting U.S. policy under a dangerous shroud of secrecy that has shielded legal opinions that are controversial, even dubious or shoddy, from both congressional oversight and legal interpretation. Had this bill been law in 2002, it’s highly unlikely the U.S. would have engaged in human rights abuses at Abu Ghraib, as the legal justification provided by the OLC’s so-called ‘Torture Memos’ would not have withstood public scrutiny,” said Demand Progress Legal Director Ginger Quintero-McCall. “The DOJ OLC Transparency Act would put an end to secret law via OLC opinion by empowering Congress to protect its own oversight capabilities, incentivizing OLC attorneys to produce high quality legal analysis, and ensuring that every member of the public understands what laws the country is actually operating under. We commend the legislation introduced by Senator Duckworth and Senator Leahy, and call on every member of Congress who cares about government accountability to support this important legislation.”

OLC’s “core function,” according to its own memoranda, is to provide “controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.” This legal advice “may effectively be the final word on the controlling law,” yet it is routinely withheld from both Congress and the public. 

Neither Congress nor the public is aware of the number of OLC opinions currently in effect, much less their legal conclusions. The OLC is typically able to thwart disclosure through FOIA requests, claiming its relationship to the Attorney General is essentially by attorney-client privilege. It took lawsuits that took advantage of a 2016 amendment to the Freedom of Information Act to compel the OLC to at least release opinions that are more than 25 years old.

Along with its House companion legislation led by Reps. Cartwright and Quigley, this Sunshine Week introduction of the DOJ OLC Transparency Act starts us on that path. 

Letter by organizations supporting DOJ OLC Transparency Act.