Senate misses opportunity to demand greater transparency from Justice Department nominee on “secret law”

WASHINGTON, May 12, 2017 – On May 10th, the Senate Judiciary Committee held a hearing on the confirmation of Steven A. Engel to oversee the Office of Legal Counsel — an office in charge of reviewing potential executive branch actions and whether they violate the law. While focusing on the scandal surrounding the firing FBI Director James Comey, the Senators missed a critical opportunity to address secrecy issues regarding OLC’s legal opinions, and to examine the challenges associated with the body of “secret law” developed by the office.

OLC issues legal interpretations that are binding on the executive branch, and has created a body of law with vast and significant implications for the American public, including opinions that have been used to justify controversial policies such as mass surveillance practices, targeted killing, and torture. Open The Government submitted questions for the hearing intended to shed light on Mr. Engel’s view on the role of the OLC, and his opinion on whether the public has a right to know what legal authority is being used to justify government engagement in such contentious practices.

“The large body of secret law developed by the OLC and relied on in government decision-making is a threat to open and accountable government,” according to Lisa Rosenberg, Executive Director of Open The Government. “The Senate Judiciary Committee has an obligation to ensure that the next head of the OLC is committed to responding to public demands for information on matters of public concern.”

The Senators missed out on asking important questions regarding the secrecy that continues to plague OLC. Recent OLC opinions that we know of relate to issues that have sparked widespread public attention, including an opinion issued on inauguration day concluding that President Trump’s son-in-law Jared Kushner’s position in the White House did not violate anti-nepotism laws, and the OLC memo on the travel ban executive order, which approved the EO for “form and legality.” Beyond these two memos, the public is completely in the dark as to what other opinions have been issued.

Open The Government is calling on the Senate Judiciary Committee leaders to ensure that Mr. Engel answers the questions for the record on OLC secrecy to assure that Mr. Engel is committed to public access and to provide a better understanding of the justifications that the Justice Department uses when it shields OLC opinions from public view.

Read the questions submitted by Open The Government to the Senate Judiciary Committee, here.

See also, Steve Engel’s questionnaire for the Judiciary Committee, with a list of OLC opinions issued by Engel when he served as Deputy Assistant AG to the OLC, including a 2007 opinion finding that the White House Office of Administration was not subject to the Freedom of Information Act.