Obama Justice Department Won't Disclose Number Of Classified OLC Opinions (UPDATE)

Attorney General Eric Holder speaks about strategy to mitigate the theft of U.S. trade secrets, Wednesday, Feb. 20, 2013, in
Attorney General Eric Holder speaks about strategy to mitigate the theft of U.S. trade secrets, Wednesday, Feb. 20, 2013, in the Eisenhower Executive Office Building on the White House complex in Washington. The Obama administration is launching a new strategy to fight the growing theft of trade secrets following new evidence linking cyberstealing to China's military. (AP Photo/Jacquelyn Martin)

WASHINGTON -- Just how many classified opinions has the Justice Department's Office of Legal Counsel issued since President Barack Obama took office four years ago? The department won't say.

Back in December, before disclosure of a Justice Department "white paper" on the legal justification for targeted killings set off a drumbeat of calls for the Obama administration to provide Congress with all OLC memos on the drone strike program, this reporter asked the Office of Legal Counsel for a list of every opinion it had issued during the Obama years.

In response to the Freedom of Information Act request, the OLC sent a letter dated Feb. 20 and enclosed five mostly redacted lists from 2009, 2010, 2011, 2012 and the first month-and-a-half of 2013.

What's more interesting is what wasn't included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it's unclear how many classified opinions the OLC has issued during the Obama administration.

Sen. Dianne Feinstein (D-Calif.) has indicated that there are 11 OLC memos specifically related to the Obama administration's targeted killing program and that members of Congress have seen only four.

On the unclassified side, the OLC issued 28 legal memos in 2009, 19 in 2010, 12 in 2011, 16 in 2012 and one so far in 2013, for a total of 76 unclassified opinions.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were "protected by the deliberative process, attorney-client, and/or attorney work-product privileges." The names of the lawyers who wrote a number of opinions -- including the memo on the president's use of recess appointments during the Senate's pro forma sessions -- were also blacked out because their disclosure would "constitute a clearly unwarranted invasion of personal privacy," the official wrote.

Some of the memos mentioned in the list have already been disclosed online by the OLC. The Justice Department even redacted the title of the opinion on whether the president could unilaterally ignore the debt ceiling limit, though the existence of that memo was disclosed in response to a FOIA request from Talking Points Memo in 2011.

UPDATE: 6:33 p.m. -- Emptywheel blogger Marcy Wheeler writes there's at least one other OLC memo that the government has acknowledged but that was redacted from the list of OLC opinions: a Jan. 8, 2010, opinion analyzing whether the Electronics Communication Privacy Act prevents telecommunications companies from voluntarily turning over international communications to the government.

As the Sunlight Foundation's Daniel Schuman pointed out in his analysis of OLC disclosure in August 2012, the office stated in 2010 that it "operates from the presumption that it should make its significant opinions fully and promptly available to the public."

The full redacted list of unclassified OLC opinions appears below.



Drones: The Future Of Flight