Will Bush's Secret Legal Memos Be Released?

See ProPublica's interactive chart of the Bush administration's still secret memos.

Last week, President Barack Obama formally repudiated certain counterterrorism tactics, including coercive interrogation, that his predecessor's administration had gone out defending.

Said Dick Cheney in one parting television interview touching on aggressive interrogation: "I can't claim perfection," but "I can tell you that we had all the legal authorization we needed to do it, including the sign-off of the Justice Department."

Then-President Bush put it more simply. He told CNN's Larry King, "I got legal opinions that said whatever we're going to do is legal."

They were talking about legal analyses generated by the Justice Department's Office of Legal Counsel, a small but powerful corps of lawyers who give "authoritative legal advice" to the executive branch. OLC opinions, or "memos," effectively tell executive agencies, including the military, what they may or may not do as a matter of law. Questionable conduct backed by a favorable OLC memo will almost always pass muster. In other words, OLC memos serve as law in the executive branch.

But Bush and Cheney neglected to mention that many OLC memos assessing their strategies for interrogation, detention, surveillance and prosecution remain secret. With an ardent advocate of government openness -- and critic of Bush policies -- slated to take over the OLC, however, people may soon know more.

Some of the memos are by now well-known, for example the August 2002 memo that narrowed the definition of torture. But many counterterrorism-related OLC memos, including all those addressing the administration's domestic warrantless wiretapping program, still haven't been released.

ProPublica has compiled the first interactive list of these crucial records -- missing and known.

These memos laid the legal foundation to many of Bush's most criticized counterterrorism efforts -- the claims of unilateral executive authority to surveil, detain, and try terrorism suspects, unfettered by Congress or international law. Their disclosure could reveal what move was considered when, why and at whose behest.

Dawn Johnsen, a liberal constitutional law professor, has been nominated by Obama to take over the OLC. She has publicly ripped the Bush OLC for its secrecy, accusing it of "a terrible abuse of power" by its "practice of making and relying on secret law." (Johnsen's confirmation is not yet scheduled.)

Her comments carried credibility, as she'd served for five years in Bill Clinton's OLC including as its chief. She decried that the public learned of "extreme" interrogation and secret overseas prisons "only because of government leaks" and "years late." That the Bush administration "continues to withhold other memos," she wrote, demands "outrage."

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.