Senators push Justice Department nominee for answers on secret law

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After missing an important opportunity to demand greater transparency from the White House nominee picked to oversee the Office of Legal Counsel (OLC), members of the Senate Judiciary Committee submitted questions for the record to get answers from Steven A. Engel on how he would approach disclosure policies as head of an office plagued with secrecy. Several of the questions track those submitted by OpenTheGovernment to members of the Judiciary Committee, intended to shed light on the Justice Department’s justifications for withholding OLC opinions, including opinions justifying controversial policies such as mass surveillance practices, targeted killing programs, and use of torture in interrogation practices.

Most members of the committee focused on human rights concerns, including torture, habeas corpus for Guantanamo detainees and the “Muslim ban.” However, Senator Sasse (R-NE) and Senator Whitehouse (D-RI) took the opportunity to address some of the secrecy challenges associated with these issues, submitting questions relating to the public interest in disclosure of OLC opinions, OLC’s obligations under FOIA, and timely public access to OLC memos. Engel’s responses for the record provide some insight into how he would approach transparency practices as head of OLC, yet fall short any basic commitment to minimum disclosure standards.

Questions from Senator Whitehouse

In response to Senator Whitehouse’s question on whether Engel believed there was a “public interest in disclosure of OLC opinions,” Engel acknowledged that while there is a public interest in disclosure, there are “countervailing interests” that come into play depending upon the nature of the opinion and the confidentiality interest of “the client agencies.” In several instances, Engel referred to government agencies as OLC’s “clients,” indicating that the agency that relies on the OLC opinion may make the opinion public.

In another line of questioning, Senator Whitehouse pointed out that the “Freedom of Information Act (FOIA) requires all executive branch agencies to make available to the public, among other things, final opinions made in the adjudication of cases, and statements of policy and interpretation the agency has adopted.” The Senator then asked for clarity on the criteria that Engel would use to determine whether disclosure is appropriate, and whether Engel would, at a minimum, commit to disclosure of the existence of all OLC memos. Engel avoided committing to this bottom line transparency ask, claiming that outside of the Department, he was “not in a position to make any commitments about disclosures regarding OLC opinions.” Engel’s refusal to commit to disclosing basic figures on how many OLC memos exist is a serious concern, and a major hindrance to public and Congressional efforts to address the challenges associated with the body of “secret law” developed by the Office.

Questions from Senator Sasse          

Senator Sasse asked Engel if he believed that “a presumption of publication within a reasonably short amount of time” should apply to OLC opinions. Engel again gave an evasive response, noting that the question of publication depends upon the opinion itself, stating that, “In some instances, an opinion’s continuing confidentiality is important to the effectiveness of the program that is the subject of the opinion, but in other instances, publication may be important for other reasons…The Office has had established procedures to consider publication on a case by case basis. If I am confirmed, I would expect to continue that process.”

In response to Senator Sasse’s question on what concrete, affirmative steps he would take to maximize transparency as is legal and prudent in OLC’s work, both for formal and more informal advice, Engel responded that he recognized “the important of transparency regarding government programs and other actions,” adding that “Transparency can help build understanding of a government program, and it can potentially improve and strengthen the legal justifications for a program.”

As before, however, Engel did not make any commitments as to how he would carry out disclosure practices, again stating that, since he was not in the Department, he could not provide information on what concrete steps he would take at OLC.

Next steps

As the Senate considers its vote on the confirmation of Steven A. Engel to oversee OLC, it’s important to consider whether he will follow procedures and practices that will increase or reduce the body of “secret law” developed by Office. We look forward to continuing to work with the Judiciary Committee and others in Congress to push for greater transparency of OLC opinions, in order to enhance public awareness of the legal authorities governing policies being carried out without our knowledge.

Read the Senate Judiciary Committee Questions for the record here.

Read OpenTheGovernment’s questions here.

This article is reposted from OpenTheGovernment. Defending Rights & Dissent is a member of the OpenTheGovernment coalition.