April 17th, 2009at 11:28am Posted by Eli
This is not encouraging:
Five years ago, Dawn [Johnsen] co-authored a document entitled “Principles to Guide the Office of Legal Counsel,” in which she argued that “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.” Dawn’s statement of principles is nuanced, but it begins with the presumption that disclosure should be the rule, never the exception:
OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. . . . There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters. . . . In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.
So Dawn would apply “a presumption in favor of publication” in all cases. Though she also recognizes that some OLC advice regarding “national security matters” may overcome this presumption, the presumption itself is applied in all cases.
Compare Dawn’s statement with President Obama’s statement announcing the release of the torture memos, which applies the opposite presumption:
While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.
Rather than starting with a presumption of disclosure, President Obama’s analysis begins with the presumption that, because these memos concern national security matters, they should presumptively be treated as secret. Although he ultimately concludes that the memos should be disclosed, he does so because “exceptional circumstances . . . require their release.” In other words, while Dawn requires exceptional circumstances to keep any OLC advice secret, the President will only release advice related to national security when such exceptional circumstances demand it.
So while the distinction between Dawn’s presumption favoring disclosure and President Obama’s presumption favoring secrecy is subtle, it is very significant. Once Dawn is confirmed, I hope she is sucessful in restoring her views on transparency to OLC.
I disagree. It’s not that subtle.