The steady emergence in the post-9/11 environment of controversial national security policies has brought to the surface the issue of legal interpretation by the executive branch of the constitutional or statutory authority justifying government actions. This interpretive activity is performed by general counsels in agencies and departments, but, most often, the primary responsibility falls to the Office of Legal Counsel (or OLC) in the Department of Justice (or DOJ). It is easy to recall the searing national debate that occurred after the public gained access to John Yoo's "torture memo" and other similar OLC opinions from 2001 to 2008 that interpreted executive authority in unprecedented ways, amounting to claims of exclusive and absolute presidential power in the national security realm (U.S. Department of Justice 2002). These episodes made clear the immense significance of the classic question of "who interprets the law," where interpretation drives and controls executive branch policy making.
At the same time, an even greater issue was brewing, as the public came to realize that these legal opinions had been prepared in secret: thus, actions taken by the U.S. government in its efforts to combat counterterrorism had been given a legal "green light" through a decision-making process occurring outside of public view and without accountability. Congressional statutes and international treaties had been interpreted by the executive branch in ways that either stretched their meaning well beyond their intent or bypassed them altogether. But, unless and until the public was able to read the legal opinions firsthand, it lacked the ability to judge the quality of the legal analysis that guided the executive branch's actions. After those legal opinions finally came to light, DOJ officials, in the waning days of the Bush administration and the first month of the Obama administration, officially discredited and withdrew them because it judged them legally deficient and of poor quality (U.S. Department of Justice 2013d; see, especially, Bradbury 2009).
Fast forward to 2011 and to the increasing demands to make public the legal analysis that justified the government's targeted killing of an American citizen in Yemen, Anwar al-Aulaki, or its larger program of such killings in Pakistan, Yemen, and Somalia through drone strikes (Savage 2011). Then, in spring and summer 2013, pressure began to build for the legal opinions relied upon by the administration to justify domestic warrantless surveillance programs (Savage and Shane 2013). With each new revelation of ever-greater government surveillance of electronic communication undertaken in apparent contradiction to existing law, the drumbeat for the government to provide legal justification for its actions grows increasingly more intense. Cases are already starting to build in the federal courts that will require the executive branch to lay bare the legal arguments that underlie its policy positions in these matters. Understanding those legal arguments can provide a useful "window" into executive branch policy making: just as the eventual disclosure of the Bush administration OLC memos was necessary to reveal shoddy legal analysis that supported highly questionable government counter-terrorism practices that ran counter to law, there is reason for the informed public to want to learn the legal thinking that underlies the controversial practices of the current administration. Targeted killings, especially of American citizens, and domestic warrantless electronic surveillance would likely rank at the top of the list of such practices that the public would want to probe.
Two cases making their way currently through the federal courts provide a first glimpse into some of the postures the executive branch is using to shield from public view the official legal opinions that justify its policies (NYT 2013a; Electronic Frontier Foundation v. Department of Justice 2013a). At the time of this writing (early December 2013), these two cases offer convenient vehicles to examine the government's thinking: both cases are proceeding along parallel tracks through the judicial system, and the government's arguments in both are largely identical. At the heart of these cases is the question of whether abstract legal analysis can be classified as a national security secret such that the government can claim exemption from disclosure under the Freedom of Information Act (FOIA).
Before delving into the cases, it may be helpful to put the issues here in some context. Public access to executive branch decision making of national security policies exists against a long history of government efforts and tactics to limit disclosure. All three branches eventually play a role in reaching definitive conclusions in each new controversy. The typical process begins with private litigants filing lawsuits in federal courts to demand access to government documents. Congress, for its part, has passed many laws that establish procedures and guidelines both to facilitate public access as well as to define conditions for executive branch exemptions from disclosure (e.g., FOIA, 5 U.S.C. sec. 552).
But it is in the judicial branch where these controversies often get resolved, and, thus, the view of the judicial role in these disputes can be determinative. Some judges take refuge in doctrines of self-restraint when confronted with national security issues: threshold issues such as standing to sue, ripeness or "political question" litter the judicial landscape on these matters (e.g., El-Shifa v. United States 2010). Other judges view this task as a straightforward application of their duty to interpret the law, making no distinction between cases of domestic versus foreign or national security affairs, and carving out no special exception for the latter from their official judicial responsibility (e.g., Hamdi v. Rumsfeld 2004). In a system where, as DeTocqueville mused, political issues inevitably end up as legal ones, the approach of judges toward their own institutional role can make the critical difference in cases where access to government documents hangs in the balance (De Tocqueville 2003).
Exploring legal arguments advanced by the executive branch to circumscribe its susceptibility to judicial review leads to uncovering certain strategic lawyering techniques. In addition to urging the court to rule in its favor on the usual threshold issues, the government finds its most potent legal tool in claiming any of the various forms of privilege available to it. In national security cases, state secrets privilege has often been that tool of choice, where the government urges courts to dismiss those cases where revealing the evidence necessary to prove the case would damage national security (United States v. Reynolds 1953).
In the two cases discussed in this article, the DOJ relies, in part, on other claims of privilege: deliberative process privilege and attorney-client privilege. The end result sought by the government here is no different than in state secrets privilege cases. It is to persuade the courts to rule that the government should be exempt from a requirement to reveal the information that it alone possesses. Thus, the executive branch's goal is to control access to information about its policies when such access is requested by private parties.
When courts defer to the government in state secrets privilege cases, private litigants lose their day in court (see, e.g., Mohammedv. Jeppesen Dataplan, Inc. 2010). In the cases to be unfolded here, plaintiffs are interest groups and a news organization that request access under FOIA to OLC memos containing legal analysis. In both cases, they are asking the courts to reject the government's claimed exemptions under FOIA and to order the DOJ to make available certain OLC opinions. If the courts rule in the government's favor, the practical outcome will be the same as in state secrets privilege cases: the executive branch controls. As one attorney for a plaintiff noted, secret law "simply has no place in a democratic society" (Electronic Frontier Foundations [EFF] 2013b).
Seeking Access to Legal Opinions: Two Different Cases, Same Government Response
These cases began with two sets of private litigants who submitted separate FOIA requests to the DOJ for classified OLC opinions. Both requests were denied by the government claiming FOIA exemptions based on (1) the position that the requested legal opinion pertains to "intelligence sources or methods" or (2) claims of deliberative process privilege and attorney-client privilege, where the DOJ characterized the opinions as "predecisional" and "deliberative," rather than statements of official government policy or "working law."
Plaintiffs then filed separate suits in federal district court against the DOJ, where judges in both cases, after determining that it was unnecessary for them to examine the requested documents in camera, ruled in favor of the government. Appeals have now been heard in two circuit courts of appeals. When those decisions are issued, it is likely that the losing party will want to appeal to the U.S. Supreme Court. It is a safe bet that the issues here will not soon recede from public controversy. Moreover, it is possible to see in the government's choice of arguments in these cases a template for what it may argue in future cases when faced with further requests for similar types of documents. Thus, it is reasonable to want to evaluate the soundness of the government's position, which carries the cost, if upheld, of a loss of transparency for the rest of us.
Electronic Frontier Foundation v. Department of Justice (or EFF v. DOJ) and The New York Times Company, Charlie Savage, Scott Shane, American Civil Liberties Union, American Civil Liberties Foundation v. U.S. Department of Justice, U.S. Department of Defense, Central Intelligence Agency (or NYTIACLU v. DOJ)
The EFF, a nonprofit...