Will Bush's Secret Legal Memos Be Released?

By Chisun Lee, ProPublica. Posted January 30, 2009.

On Wednesday, ACLU attorneys sent acting Assistant Attorney General David Barron a letter asking the DOJ to release the memos. (Asked by ProPublica when or whether the still-secret memos will be released, a Department of Justice spokesperson declined to comment.)

The Bush administration withheld the memos, its lawyers have said in court filings, on national security grounds and to protect internal confidentiality. Even after warrantless domestic wiretapping had been publicly exposed, then-Assistant Attorney General Peter Keisler told one federal judge in an ACLU FOIA suit, disclosure of OLC memos on the subject could "cause exceptionally grave damage to the national security."

These can be legitimate grounds for avoiding Freedom of Information Act disclosure requirements. Courts typically decide FOIA exemption claims on a document-by-document basis, sometimes reviewing classified information in private but sometimes deferring to the government's claim that the contents must remain a protected state secret. Some of the Bush OLC's claims of FOIA exemption have already been approved by judges, but the ACLU is asking that the new administration reconsider all such positions in the new spirit of disclosure Obama embraced last week.

Bush's arguments for confidentiality ranged from attorney-client privilege to "executive privilege" to the "deliberative process privilege" -- which protects free discussion among policymakers before a final decision is made -- to the attorney work-product privilege, which shields strategizing done by a lawyer for litigation purposes.

Johnsen herself has said that some OLC advice should not be disclosed. National security classification can be warranted, she said in a statement of OLC guiding principles co-published with other alumni (several returning under Obama) shortly after exposure of the so-called torture memo. To encourage agencies to seek to avoid unlawful conduct, she said, "OLC should honor a requestor's desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action."

But the presumption should be "transparency," Johnsen said, and exceptions should be construed narrowly. The Bush OLC's secrecy, said Johnsen, had disabled Congress and the courts from checking executive-branch "overreaching or abuses," for the simple fact that they "do not know what the executive branch is doing."

National security should trump disclosure only in "extreme cases," she told a Senate Judiciary subcommittee last April, and can be satisfied by limited redactions of "factual details" or "some delay." She will now have the chance to decide, with an insider's view of the stakes, whether the Bush administration's decisions to withhold made sense.

Besides being antidemocratic, some have argued, OLC secrecy is dangerous for practical reasons: It could permit conduct based on faulty premises. The August 2002 "torture memo" was among a number written around that time that were "deeply flawed" and "sloppily reasoned," according to Jack Goldsmith, who helmed Bush's OLC from October 2003 to June 2004 and then wrote a book about it.

Marty Lederman -- an OLC alumnus who is returning as Johnsen's deputy -- has said that had the memo been exposed to public scrutiny before it was leaked (and then rescinded) in 2004, "it would not have taken more than two years for the Office to make much-needed corrections."

See more stories tagged with: war on terror, bush administration, barack obama, foia, aclu, department of justice, john yoo, jay bybee, eric holder, office of legal counsel, stephen bradbury, dawn johnsen, stephen gillers, jameel jaffer, torture memos, marty lederman

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