Lawyering in Secret and the Government’s FOIA Bogeyman

Last week, in Washington, the Central Intelligence Agency’s top lawyer aired a pointed complaint — or was it a warning? — that has been bubbling about for some time. At an American Bar Association event on national security law, Caroline Krass, the CIA’s General Counsel, told the audience that lawyers working at the highest levels of the national security agencies are being “deterre[d]” from seeking legal advice from the Office of Legal Counsel because of the prospect that the advice will be made public under the Freedom of Information Act. Referring to OLC, Krass bemoaned the “focus the office has gotten [over] the past 10 years or so” — a focus that has meant that “pretty much anytime the administration adopts a position in the context of domestic law or national security that could be [or] seems a little bit edgy or slightly controversial, immediately the request for the OLC opinion comes.”

Karl Thompson, the acting head of the OLC, concurred: “It is absolutely true that the volume of requests for formal opinions has declined sharply over the last several years.”

The comments of Krass and Thompson surfaced a line of argument with which national security lawyers that regularly seek OLC opinions are, by now, well familiar. Government lawyers often argue that the release of OLC legal advice to the public will chill government agencies from seeking such advice in the first place. In July 2014, government counsel told the Second Circuit Court of Appeals that “there very much is a chilling effect” on agency lawyers who fear that legal advice they receive from OLC will eventually be made public. Jack Goldsmith, himself a former OLC chief, has recently suggested that OLC’s influence on national security matters is on the wane, due in part to the potential disclosure of legal advice under FOIA. And in describing the development of legal conclusions concerning the raid that would kill Osama bin Laden, Charlie Savage of the New York Times made clear that OLC — and even the Attorney General himself — was deliberately kept out of the loop, perhaps because of concerns about the FOIA-ability of OLC opinions.

Really?

First, there is reason to doubt that this purported “OLC chilling effect” is as significant as some government lawyers are now claiming it is. Judge Jon Newman, of the US Court of Appeals for the Second Circuit, has been skeptical, to say the least. Responding at an ex parte oral argument to the government’s position that the Second Circuit’s 2014 publication of the OLC memorandum that authorized the killing of Anwar al-Aulaqi had led government lawyers to less frequently consult OLC, he said:

I’m asking you now, the year has gone by. Has there been any inhibition? You can’t point to any. … It would be helpful if you are going to make the argument that we did a terrible thing and we inhibited agencies from seeking advice to come up with at least a couple of examples of an agency that said, gee, we would have asked but we’re inhibited. Or an example or two from OLC that says we were asked and we would have been glad to answer, but we dare not answer because of the fear of disclosure.

If the government can identify any such examples, it has yet to do so on the public record. For now, at least, we should treat any “OLC chilling effect” skeptically. Indeed, the OLC itself has endorsed the position that it should publish its legal advice if only “speculative or abstract fears” (rather than specific ones) counsel continued secrecy.

Second, even assuming this chilling effect actually exists, it merely suggests that government lawyers are deliberately subverting the transparency that Congress intended to require of our democracy. The drafters of FOIA were hardly unaware of the risks to deliberative government that a transparency law might pose. They passed it anyway. Congress accounted for those risks by including a FOIA exemption that permits agencies to withhold truly deliberative advice when they can justify that withholding on a document-by-document basis. It also affirmatively required the government — without even waiting for a request — to publish records that represent the government’s “effective law and policy,” notwithstanding any claims to privilege. (As Elizabeth Goitein noted yesterday at Just Security, most OLC advice, by its very nature, is the kind of binding legal analysis that FOIA intended to be public by default.) For government lawyers to protest that they cannot do their jobs because their advice might one day see the light of day, allowing the public to hold them accountable for what they do in the public’s name, betrays an impoverished view of how our government is supposed to work. In passing FOIA, Congress did not ignore these lawyers’ concerns — it decided they were subservient to the value of transparency in our democracy.

Third, government lawyers who believe courts will routinely release their legal advice under FOIA are living in a world with which I am distinctly unfamiliar. Though a handful of important OLC opinions have been released over the past decade, most of those releases have been discretionary, not forced by the hands of any judge.

The most prominent exception was the July 2010 OLC memorandum authorizing the targeted killing of Anwar al-Aulaqi, released after a four-year FOIA effort by the American Civil Liberties Union and the New York Times. This memorandum was disclosed by the Second Circuit only after government officials had, for half a decade, publicly relied on, and summarized the reasoning of, the memorandum in asserting that the targeted killing program was lawful. (And even in that case, the government voluntarily elected not to seek en banc or Supreme Court review of the Second Circuit’s decision.)

Along with other scattered cases of public adoption, the release of the al-Aulaqi memorandum stands conspicuously apart from the vast bulk of OLC opinions that the government has successfully withheld; it is very much the exception proving the rule. The government lawyers’ view that the courts have lately treated FOIA as kryptonite to enduring secrecy over legal opinions is belied by reality. (Perhaps the warnings of chill might be more credible if the author of the al-Aulaqi memorandum, David Barron, hadn’t, upon the memorandum’s publication, suffered the ignominious consequence of government transparency by being named a First Circuit judge.)

And fourth, Thompson’s suggestion that a chilling effect has pushed OLC into giving more informally drafted advice raises serious concerns about the government’s positions concerning such advice in FOIA litigation. Even as he noted the decline in formal OLC opinions, Thompson made clear that the office’s advice given orally or via email “is still authoritative. It is still binding by custom and practice in the executive branch. It’s the official view of the office. People are supposed to and do follow it.” If so, the government is also supposed to release it under FOIA. But government lawyers often suggest to FOIA litigators that they exclude emails from their requests so as to litigate only the withholding of formal opinions. If OLC is truly issuing “authoritative” and “binding” legal advice via email, we can be sure that in the future, similar narrowing requests by the government may increasingly be met with a very different kind of chill.

To be fair, government lawyers like Krass have important jobs, the discharge of which requires them to address extraordinarily difficult issues all the time, and no one likes to be second-guessed. Moreover, Krass and her colleagues are entirely correct that transparency advocates will, at the drop of a Times story, formally request OLC advice, especially when that advice appears to be “edgy” or “slightly controversial.” But one lawyer’s “edge” is another’s “illegality,” and final legal opinions deciding the most controversial issues of the day are precisely the kind of records that FOIA intended to bring into the public light. 

About the Author(s)

Brett Max Kaufman

Staff Attorney in the ACLU's Center for Democracy Follow him on Twitter (@brettmaxkaufman).