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Memo to OLC: Time to Walk the Talk

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February 26, 2009

Yesterday, the Senate Judiciary Committee held confirmation hearings for new Justice Department nominees — including Dawn Johnsen, the Obama administration’s pick to lead the Office of Legal Counsel (OLC). As you may recall, the OLC provides authoritative legal opinions to the president and executive branch agencies. During the Bush era, memos penned by the OLC supplied the basis for some of the administration’s worst practices — including interrogation, detention, rendition, and warrantless surveillance policies.

Most of these memos remain secret, and we are asking the new administration to uphold their promise of transparency and release the memos to the public. The Los Angeles Times ran an op-ed today by Jameel Jaffer, the director of our National Security Project, about the secret memos. In the piece, Jameel writes:

…[T]he Bush administration was remarkably successful at shielding the office’s work from the public. The documents most crucial to the historical record — including many of the memos used to justify the administration’s most radical policies — are still being withheld. The result is that the public lacks access to basic information about how the Bush administration’s national security policies were developed, who participated in their development and what legal arguments were generated to support them.

The Bush administration contended in court that the memos are protected by the attorney-client privilege or that they can’t be released without compromising the nation’s security. Historically, though, many of the office’s memos have been published as a matter of course. And it is not clear how national security would be harmed by releasing, for example, legal analyses of interrogation methods that are unlawful now and that were unlawful when they were used.

At the confirmation hearing, Johnsen was asked to explain her views on a number of national security related issues — including the confidentiality of the OLC opinions. Responding to her comments, Jameel told ProPublica, “I would have liked to hear a clearer commitment…ultimately what matters is not what Ms. Johnsen says but what she does, and when she does it. We’re hopeful that over the next few weeks we’ll start to see some of these memos released.”

To learn more, check out Jameel’s conversation with Salon’s Glenn Greenwald about the issue (Greenwald also speaks to attorney Jonathan Hafetz about the ACLU’s case on behalf of Ali al-Marri).

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