Expanding Access to OLC Opinions

OLC opinions are the Justice Department’s authoritative legal advice to the executive branch on

questions central to the functioning of government.

Executive branch officials are capable of implementing, at times

secretly, policy programs that could otherwise be impermissible but for unreported OLC opinions providing them with legal cover.

Department of Justice is withholding from online publication 39% of its 509

OLC opinions written between 1998 and 2012.

Sunlight Foundation

OLC Opinion Text on OLC Webpages (1998-2012)

UnavailableAvailable

“In all events, OLC should in each administration consider the circumstances in

which advice should be kept confidential, with a presumption in favor of publication … [and] the

values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.”

(emphasis added)

- Philip HeymannHarvard Law Professor and former Director of the Justice

Department’s Criminal Division

The Obama administration has refused to release a war on terror opinion that

reportedly authorized the use of armed drones to kill U.S. citizen

Al-Awlaki in Yemen.

• Accurate accounting of how many memos are issued.

• Ability to determine the average wait for the release opinions.

• OLC opinions should be redacted as lightly as possible.• At a minimum the titles of all opinions should be made

public or at least descriptions of the opinions.

SOLUTIONS

• Posted online in an easily searchable format.

• Any time the executive branch disregards a federal statutory requirement on constitutional grounds, the OLC should publicly release a clear statement explaining its deviation.

• Opinions should be released once the need for secrecy ends.

SOLUTIONS

Making the processes, opinions, and standards of the department more transparent would also help restore the Justice Department’s tarnished

credibility.

- Philip HeymannHarvard Law Professor and former Director of the Justice

Department’s Criminal Division