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New Opinions From the Office of Legal Counsel:

Busy day at the Office of Legal Counsel today, wholly apart from the headlines about the (finalized but still unpublished) report by the Office of Professional Responsibility blogged earlier today by Jonathan Adler. Today, the Office of Legal Counsel published a whole mess o' opinions and two memoranda withdrawing five Bush-era interrogation opinions. Previously (on April 16), Attorney General Holder released a statement saying that OLC had withdrawn four Bush-era interrogation opinions; today, OLC published the April 15, 2009 memo in which the four opinions actually were withdrawn, plus a June 11, 2009 memo withdrawing a fifth opinion.

OLC also published ten opinions today, four of them signed during the current Administration (one of them involving the Ronald Reagan Centennial Commission Act of 2009, which was the subject of an Obama signing statement); five signed during the Bush Administration (including one by yours truly concerning the legality of public relations activity undertaken by a former official on behalf of a foreign government); and one from the Clinton Administration.

A couple of observations are in order. First, OLC is to be commended for the speed with which it got the current Administration's opinions onto the website. In each instance, it took just a few months (sometimes less than two), which is breakneck speed for the publication process, historically speaking. Because there is a fairly extensive publication review process, and because affected units of the government traditionally have been asked to comment on OLC's publication decisions (and such requests for comment sometimes slide to the bottom of recipients' in boxes), opinions routinely take (took?) a year or more to be published. The OLC memo outlining the publication process, as well as the OLC opinion-writing process, is available here.

The Bush Administration's OLC was criticized for delays in publication, but there also were significant delays under the Clinton Administration (more on which later), although I should emphasize, both could get opinions into publication quickly when the process worked smoothly. (If you go to the "What's New" page at OLC, you can see the dates that published opinions were signed back to the beginning of 2006, and frequently, the delay was fairly brief — days or weeks — although typically, it was much longer.) I understand that, before the advent of the Internet, opinions were typically published en masse at the end of an Administration.

Second, the current leadership of OLC criticized the Bush OLC for its publication practices, so it may well be that the speedy publication witnessed today is a sign of things to come. But today's releases aren't definitive on that score. Three of the four Obama Administration opinions are on subjects that suggest they were singled out for expedited treatment — they involve the constitutionality of legislation, and DOJ understandably may wish to publish such opinions promptly to make the legal basis for its views known. The fourth opinion, however, involves the eligibility of a retired military officer for appointment as NASA Administrator, which, I gotta say, doesn't scream that it was singled out for expedited publication. It may be that Senate committee with jurisdiction raised questions about the legality of the appointment, arguing the nominee was ineligible, and the opinion was meant to persuade the Committee of the nominee's eligibility. If so, the decision about releasing the opinion outside the Executive Branch (to Congress) would already have been made, and publication would come quickly after that. Under similar circumstances in the past, OLC has published opinions in a matter of a few months. But, in any event, if OLC does make a regular practice of publishing opinions this quickly, it will have set a new standard for timely publication that should be emulated by future officials.

Third, if OLC succeeds in keeping up this pace of publications, it may raise the question whether OLC is still soliciting comments from interested agencies; or (more likely) whether it has set a very short deadline for comment and made clear that a failure to object promptly will be viewed as consent to publication.

Finally, one of the opinions, concerning the census, was signed in May 1999, more than a year before President Clinton left office. This demonstrates that delays in publication are nothing new, since the Clinton Administration did not manage to publish the opinion during the 20 months remaining in the second term. I don't know why the opinion wasn't published during the first Bush (43) Administration. The decision to publish it now, after such a long delay, certainly suggests that there is some special reason for doing so at this particular time, and one obvious reason suggests itself: the impending decennial census. The opinion concludes that section 642(a) of the inelegantly named Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which concerns the authority of federal, state, and local government officials to disclose to the INS (now ICE) information regarding an individual's citizenship or immigration status, does not repeal 13 U.S.C. ยง 9(a), a statutory confidentiality requirement that bars the disclosure of covered census information by census officials.

The opinions, and the memoranda withdrawing the interrogation opinions, are available here.

MarkField (mail):
Your links aren't working. At least I can't get them to open.
8.24.2009 11:24pm
JohnElwood (mail):
I don't know what's going on, but if you click on them, the correct address will be in your browser's URL line in quotes, prefaced by a bunch of extraneous matter. Delete the extraneous matter and the quotes and you'll have the right address. I'll try to get this taken care of.
8.24.2009 11:35pm
Ben Sheffner (www):
Having written legal memos for clients in the private sector, but not in government, it's a bit jarring for me to see legal analyses like these released to the public. When DoJ attorneys write memos providing legal advice to various other government actors, are such memos not normally protected by privilege? Or does the government routinely waive the privilege? And are memos written by OLC treated differently than other DoJ memos, because of that division's special role?
8.24.2009 11:37pm
Eli Rabett (www):
All in all a very strange post. You like that they pushed to get the opinions out. You speculate that the only way they succeeded is to ignore their own procedures. You then try and ding them for not doing as well in the future.

You did enjoy beating your loved ones tomorrow, didn't you?

FWIW look at the calendar to see why finishing up opinions on census issues is timely
8.25.2009 9:10am

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