The Office of Legal Counsel (OLC) has released an index of classified opinion titles published by the office from 1974 to 2021. The disclosure of the index, which follows the release of hundreds of unclassified opinions pursuant to a FOIA settlement over the last year and a half, is an important next step towards a more complete public record of the role the OLC has played in shaping public policy. The index reveals that the Office rendered classified legal advice during this time period on wide ranging topics – from domestic and international surveillance during the Cold War to unauthorized immigration from Mexico and even presidential succession.
The Office of Legal Counsel is the component within the Department of Justice that drafts binding legal opinions for federal agencies. These opinions shape the work of the executive branch, which treats the final, written documents as it would Supreme Court opinions. Unlike the Supreme Court, though, the Office is staffed by executive branch lawyers, and many of its opinions are carefully guarded from public scrutiny rather than made generally available. At times, the OLC has said this secrecy is necessary because disclosure may discourage policymakers from consulting the office, and because the threat of disclosure might lead agencies to request informal, unwritten advice instead of formal, written opinions. Often, though, the OLC’s resolution of an issue is the government’s last word on the matter since secrecy and justiciability doctrines can prevent the issues on which the OLC advises from ever being heard in a court of law. Denying the public access to a body of secret opinions that shape government policy, and that reflect the government’s understanding of its own power and the contours of individual rights, is fundamentally antidemocratic. Concerns around the lack of transparency in the OLC’s work have only grown in recent decades, as OLC opinions supplied the foundation for legally questionable or even lawless policies. When information about these opinions is disclosed, it offers a rare glimpse into the government’s understanding of its own power – and the opportunity for the public to contest and protest the OLC’s conclusions.
The case that led to the production of these documents, Francis v. Department of Justice, was filed by the Knight Institute, where I work, four years ago on behalf of five prominent historians, Campaign for Accountability, and the Knight Institute itself. The Institute and the Justice Department reached a settlement in the case in 2021, and the Justice Department has since released more than 500 opinions as well as indices listing all of the unclassified opinions written by the OLC between 1945 and Feb. 15, 1994. Some of the recently released opinions address the power of the executive branch to remedy segregation; Congressional power under the War Powers Resolution; and the Justice Department’s decision not to bring criminal charges against newspapers and journalists who published the Pentagon Papers. All of the now-public opinions are available in the Knight Institute’s online OLC Reading Room.
The disclosure of the classified opinion index is a significant step forward, shedding new light on the most sensitive questions considered by OLC from the mid-1970s to the present day. The secrecy around OLC opinions means that it’s remarkably hard to glean the areas on which the OLC is rendering advice—many of the OLC’s memos have been shrouded in “deep secrecy,” to use David Pozen’s phrase. As my colleague Jameel Jaffer has written, this secrecy is unusual, in part, because agencies generally have an affirmative obligation to publish their final opinions, orders, policies, and interpretations under FOIA’s “reading room” provisions; this obligation exists, in the Supreme Court’s words, due to the “strong congressional aversion” to “secret law.” Despite norms of publication and the importance of the Office’s mandate, the public has simply never been able to know how much of the OLC’s work influenced executive branch policy, or precisely what topics the government kept secret. When even the existence of a legal opinion is secret, the public can’t know what knowledge is being withheld from it.
The disclosure of titles alone reveals a great deal about the substance of OLC’s work during this time period. Some of the topics are unsurprising given the Office’s longstanding enmeshment in national security matters. There are a number of titles that demonstrate the Office’s involvement in developing cold war surveillance and counterintelligence programs, particularly in developing electronic surveillance protocols in Berlin. Others involve the active monitoring of the Communist Party USA and the American Indian Movement, or advice on records associated with individuals who had been investigated for their ties to communist or socialist causes–including FBI files on the playwright Bertolt Brecht, philosopher Corliss Lamont, and actor Larry Parks.
Other memoranda written by the Office from the 1970s to 1990s cover more unexpected topics that stray further from the national security and interagency work that many associate with the OLC. A number of memoranda pertain to immigration, advising on people unlawfully entering the United States from Mexico, the repatriation of Cuban nationals, as well as political affiliations and visa ineligibility. Likewise, the Office consulted on the use of “riot control agents” (chemical irritants such as tear gas), the legality of using armed forces in Haiti, and the political status of Micronesia, which was engaging in talks with the United States on the possibility of self-government throughout the 1960s and 1970s.
Perhaps most notably, dozens of the opinions pertain to electronic surveillance. These titles highlight the OLC’s role advising various agencies on electronic surveillance throughout the 1970s, 80s, and 90s. Alongside past opinions, these titles suggest that intelligence agencies within the executive branch were actively exploring their authority to carry out technologically enhanced surveillance during this time. The titles illuminate a critical period in the evolution of surveillance law — the period in which the country was grappling with rapid technological change, the effects of new technology on international relations and surveillance (for instance, it authored a 1975 memorandum on the Palestinian Liberation Organization and Electronic Surveillance), the enactment of FISA, the establishment of the Foreign Intelligence Surveillance Court, etc. During this period, the OLC was contending with the limitations that the law could impose on these agencies’ intelligence-gathering.
Obviously, there is only so much we can learn from the titles alone. Again, though, the disclosure of the titles means that journalists, researchers, and others can now request the opinions themselves – and the OLC will be required by law to process the memos for release, redacting only those portions that fall within the scope of enumerated FOIA exemptions. In that respect, the index opens important new avenues for advocacy and accountability.