from the agencies-stood-together-to-ensure-OLC-stood-apart dept
The Freedom of Information Act was put into place to give us a more accountable government. The theory was that more transparency would lead to better governing. Our public servants would know their activities were open to scrutiny and might start acting like their employers were watching over their shoulders.
Instead, our public servants focused their time and effort on finding creative ways to hide the same stuff they're obligated by law to reliquish. Instead of a better governing, we got private email servers, excessively-abused FOIA exemptions, revamped records retention policies and the erection of massive paywalls when all else failed.
This instinct to dodge, rather than deliver, bleeds into every agency in the federal government. The fear of FOIA requests has led agencies to avoid committing anything to paper -- either of the dead tree variety or composed of pixels and residing in an FOIA-able digital inbox. This includes the sort of thing that one would assume government agencies would want in writing: official legal opinions on agencies' programs and activities.
Concerns about legal opinions being made public under the Freedom of Information Act are leading various parts of the federal government to stop asking for written advice from the Justice Department's Office of Legal Counsel, a top Obama administration lawyer said Thursday.
"I think that has served as a deterrent to some in terms of coming to the office to ask for a formal opinion," said Central Intelligence Agency General Counsel Caroline Krass, who spent more than a decade at the Justice Department office that issues legal advice for the executive branch.So, we have an Office of Legal Counsel that's been reduced to issuing verbal blessings for government activities. Not only does this keep the government's official legal justifications secret, but it prevents a) FOIA requesters from obtaining a copy and b) the legal opinion being used against the government in litigation. Josh Gerstein's article for Politico notes the number of official OLC opinions has declined steeply over the last several years, with the total number released over the last three years (29) barely topping 2009's release total (28).
The OLC admits it is issuing far fewer formal opinions. At the same time, it claims its secret opinions, delivered orally or via email, are just as binding. That may be great news for those with inside access, but for everyone else, it's just another door being slammed in their face.
But there's another reason the OLC is offering fewer formal opinions: the administration -- along with several other government agencies -- feel they're better served by working around this independent office. From Jack Goldsmith -- former Assistant Attorney General and member of the Office of Legal Counsel -- writing for the Lawfare blog:
Many people who would know have told me that OLC’s advice is now sought much less than in the past, especially in national security decisions. A few people have told me that OLC simply has no place at the table in important national security decisions.The guidance of independent legal counsel could also result in better governing. But it's not going to change anything if many of the most powerful people in Washington consider its opinions to be liabilities, at best. The OLC obviously doesn't have any pull -- at least not with this administration. Judging from Goldsmith's comments in his post, it appears that power was on the wane throughout much of the previous administration.
I know from first and second-hand conversations that some important lawyers in the Obama administration came to Office thinking that OLC had too much sway in prior administrations. And then the sky did not fall when Attorney General Holder, early in the administration, reportedly overruled an OLC opinion on the unconstitutionality of a D.C. voting rights bill after the Acting Solicitor General advised him he could defend the law in court.
In the end, it's just another way for the federal government to cut the public out of the loop. The government seems to really like other people's money and the power that comes with the positions, but has nearly no enthusiasm for accepting the additional responsibilities that come with the territory.