About Those Memos

In a compelling test of the Obama Administration’s commitment to open records, the ACLU asks Justice Department to release dozens of memos on surveillance and detainee treatment.

This morning the American Civil Liberties Union (ACLU) sent a two-page letter to the Obama Justice Department asking it to turn over dozens of still-secret memos produced by the department’s Office of Legal Counsel (OLC). OLC lawyers develop legal advice for the President and other top executive branch officials. During the Bush Administration, the office is known to have produced a number of controversial legal opinions, including opinions that former President Bush relied upon in defending the legality of harsh interrogation methods that included waterboarding.

“In light of President Obama’s January 21 Memorandum concerning the Freedom of Information Act,” wrote lawyers for ACLU’s National Security Project, “we write to ask that you reconsider the decision to withhold these OLC memos. Releasing the memos would all the public to better understand the legal basis for the Bush administration’s national security policies; to better understand the role that the OLC played in developing, justifying, and advocating those policies; and to participate more meaningfully in the ongoing debate about national security, civil liberties, and human rights. Releasing the memos would also signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct.”

As the ACLU letter notes, President Obama has already “effectively rescinded” the memos issued by OLC that Bush and other former top administration officials relied upon for developing and implementing the controversial interrogation policies. A concise and informative chronology and index of the main OLC memos on surveillance and detainee treatment has been compiled by Pro Publica and is available here.

The alleged politicization of the OLC under the Bush Administration has been a closely followed story, and one that is the subject of a book, The Terror Presidency, by Jack Goldsmith, the former head of the OLC, who resigned the same day in June of 2004 that he withdrew the now-infamous “torture memo” authored by Justice Department lawyer John Yoo two years earlier.

Also, today, veteran journalist Greg Sargent is reporting that Obama has appointed Mary De Rosa, the national security adviser to U.S. Senator Patrick Leahy, as Deputy Counsel to the President for National Security and legal adviser to the National Security Council. Leahy, who chairs the Senate Judiciary Committee, has for several years pushed for the release of the memos that the ACLU cited in its letter to day.

Click here for more information on the ACLU’s National Security Program and its efforts to obtain the OLC memos.