As Attorney General Eric Holder is about to leave office, Senator Ron Wyden has sent him a letter
more or less asking if he was planning to actually respond to the various requests that Wyden had sent to Holder in the past, which Holder has conveniently ignored. Wyden notes, accurately, that the government's continued secrecy on a variety of issues "has led to an erosion of public confidence that has made it more difficult for intelligence and law enforcement agencies to do their jobs."
First up, an explanation of what legal authority the government was using for extrajudicial executions via drones and the like in areas not declared as war zones. Holder ignored that. Wyden would like an answer. As you may recall, the administration has dragged its feet
on this issue for a while, and when a court told the DOJ to release the memo
, it released a document that just pointed to another secret memo
First, one area of particular importance is the President's authority to use military force outside
of declared war zones, and particularly his authority to take lethal action against specific
American citizens. In November 2013, Senators Mark Udall and Martin Heinrich and I wrote
you a letter asking a number of questions about the limits and boundaries of this authority, and
we have not yet received a response to this letter. I ask that you help ensure that we receive a
substantive response to the questions in that letter.
The second issue is a bit more opaque, because apparently it deals with a secret interpretation of the law that was done by the White House's Office of Legal Counsel in 2003, involving a legal interpretation of commercial service agreements. What, exactly, it covers is not clear and that's part of the problem -- though it seems likely to involve questions of privacy protections and government access to information. Wyden has made it clear that he believes the OLC opinion is directly in contradiction with the text of the law that it is discussing, but it is still in place. This is a key issue in the current fight over "cybersecurity" legislation, because a big part of the legislative proposals is about giving companies liability immunity for sharing info with the government -- but it's not currently clear what the government thinks companies can currently share, thanks to secret interpretations of the law that Wyden says run contrary to a plain reading of the law (and, in the past, when he's said this about other laws, he's later been proven correct).
Without going into any details, Wyden and then CIA General Counsel nominee Caroline Krass discussed this issue
at her confirmation hearing over a year ago. She admits that the ruling is out of date and that she would not rely on it. Wyden asks about the process for having the opinion withdrawn to prevent other government lawyers from relying on it in the future, but doesn't get much of a response. He noted, in that hearing, that Holder appeared to be ignoring his requests to do something about this secret OLC opinion, and apparently that has continued to this day:
Second, I have written to you on multiple occasions about a particular legal opinion from the
Justice Department's Office of Legal Counsel (OLC) interpreting common commercial service
agreements. As I have said, I believe that this opinion is inconsistent with the public's
understanding of the law, and should be withdrawn. I also believe that this opinion should be
declassified and released to the public, so that anyone who is a party to one of these agreements
can consider whether their agreement should be revised or modified.
In her December 2013 confirmation hearing to be the General Counsel of the CIA, the deputy
head of the OLC stated that she would not rely on this opinion today. While I appreciate her
restraint, I believe the wisest course of action would be for you to withdraw and declassify this
opinion, so that other government officials are not tempted to rely on it in the future. I urge you
to take these actions as soon as practicable, since I believe it will be difficult for Congress to
have a fully informed debate on cybersecurity legislation if it does not understand how these
agreements have been interpreted by the Executive Branch.
The third item is even more vague than the second -- as he only notes that it raises questions about "the lawfulness of particular conduct that involved an Executive Branch agency." Take a guess what that might be about, because there's a wide range of possibilities. Either way, rather than respond to the question, the DOJ just told Senator Wyden that it had no obligation to respond to him -- basically, the DOJ version of giving Wyden an Executive Branch middle finger:
Third, I have asked repeatedly over the past several years for the Department of Justice's opinion
on the lawfulness of particular conduct that involved an Executive Branch agency. I finally
received a response to these inquiries in June 2014; however the response simply stated that the
Department of Justice was not statutorily obligated to respond to my question. I suppose there
may not be a particular law that requires the Department to answer this question, but this
response is nonetheless clearly troubling. My question was not hypothetical, and I did not ask to
see any pre-decisional legal advice -- I simply asked whether the Justice Department believed
that the specific actions taken in this case were legal. It would be reasonable for the Department
to say "Yes, this conduct was lawful" and explain why, or to say "No, this appears to have been
unlawful" and take appropriate follow-up action. Refusing to answer at all is highly problematic
and clearly undermines effective oversight of government agencies, especially since the actions
in question were carried out in secret. For these reasons, I renew my request for an answer to
this question, and I hope that you can help provide one.
And, finally, Wyden questions the bizarre claims, as recently discussed
, that the DOJ has said in court that it has not even bothered to open the package from the Senate Intelligence Committee that included the full, unredacted CIA torture report (despite having told reporters in the past that the DOJ had read the whole thing). Wyden is quite reasonably perplexed as to why the DOJ would not actually read the report, especially as it details how the CIA misled the DOJ itself during the DOJ's investigation into the CIA's practices.
Finally, as you are aware, the Senate Select Committee on Intelligence recently released the
declassified executive summary of the committee's bipartisan report on the use of torture by the
CIA, and provided copies of the full classified report to several Executive Branch agencies,
including the Department of Justice. During your tenure you have been a strong voice against
the use of torture, and you have taken some important actions to ensure that it is not used again.
This is why it was very surprising to learn that no one in the Justice Department has read the full
classified version of the torture report, and that in fact the report has been locked away in a safe
instead of being provided to appropriate officials.
This report provides substantial detail about how the Department of Justice came to reach flawed
legal conclusions based on inaccurate information provided by CIA officials. It will be much
more difficult to prevent these mistakes from being repeated if no one at the Justice Department
understands how they happened in the first place. I strongly encourage you to disseminate this
report to appropriate Justice Department personnel before you leave office, as there seems to be
no valid reason why this cannot be done immediately.
Somehow, I doubt that Holder is likely to do much of anything in response to this letter. He's spent so many years ignoring these requests, why change now?