March 16, 2022

Duckworth, Leahy Re-Introduce Bill To Strengthen Oversight of Executive Branch & Increase Transparency


[WASHINGTON, D.C.] – Today, during the News Leaders Association's annual Sunshine Week that aims to promote transparency across our government, U.S. Senators Tammy Duckworth (D-IL) and Patrick Leahy (D-VT) re-introduced legislation—the Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act)—to strengthen oversight over the Executive Branch and increase government transparency by requiring the U.S. Department of Justice’s (DOJ) Office of Legal Counsel (OLC) to publicly disclose all past legal opinions, as well as any it produces moving forward. Too often, legal opinions provided by the DOJ OLC are treated as binding by federal agencies, even though neither Congress nor the American public have access to all of these legal interpretations, which also have no Congressional or judicial oversight. In the past, secret DOJ OLC opinions have been used to justify torture and the claim that the President cannot be indicted while in office dates back to a famous Nixon-era OLC publication. 

“The secrecy surrounding these highly consequential legal opinions—which often undermine the laws that Congress passed and a President signed—is unacceptable,” Duckworth said. “Sunshine is the best disinfectant, and I’m proud to re-introduce the DOJ OLC Transparency Act with Senator Leahy to help strengthen oversight and accountability by ensuring Congress and the American public are able to review these opinions.”

“For too long, the executive branch across several administrations has sweepingly expanded its powers based on Department of Justice Office of Legal Counsel opinions that are not subject to congressional or public scrutiny,” said Leahy.  “These OLC opinions have effectively operated as a secret body of executive branch law—justifying everything from torture to lethal drone strikes—often in conflict with public laws.  This is antithetical to a fundamental premise of American democracy: that all branches of government are bound by the same laws, which in turn are bound by the Constitution.  This legislation would require the Justice Department to disclose OLC opinions to Congress and the public, and thus provide much needed transparency into and oversight over the executive branch’s activities.  I am proud to cosponsor this bill.”   

The Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act) would:

  • Direct the Attorney General (AG) to publish all OLC opinions on the public DOJ website to be accessed by the public free of charge.
    • The AG would be required to publish new OLC opinions within 48 hours of the opinion being issued; and
    • Retroactive publication of past OLC opinions would be guided by a specific set of timelines for publication.
  • Ensure that, if past opinions do not exist, the AG provides a description of the missing DOJ OLC opinion and submit to Congress a written certification, under penalty of perjury, that a good faith effort was made to locate the text of the missing opinion.
  • Direct the AG to redact information that is classified as sensitive, Secret or Top Secret prior to publication of an OLC opinion containing classified information.
    • The AG must also document every redaction, and include a description explaining why public online disclosure of the classified information would result in the harm associated with the level of classification;
    • The AG is prohibited from redacting information that is sensitive but unclassified; and
    • Any Member of Congress and any appropriately cleared congressional staff member must be provided a non-redacted copy of an OLC opinion containing classified information.
  • Allow an individual or entity deprived of access to an OLC opinion to file suit in federal court to force the production of the OLC opinion that is being unlawfully withheld from the public.

The copy of the bill text can be found here.

"It is beyond time for Congress to demand accountability from the Office of Legal Counsel by requiring basic transparency about final OLC opinions," said Melissa Wasser, policy counsel at the Project On Government Oversight. "The DOJ OLC Transparency Act would require the proactive disclosure of these secret opinions, allowing for more robust congressional oversight and promoting greater transparency and public confidence in our government." 

“The Office of Legal Counsel has shaped lasting U.S. policy under a dangerous shroud of secrecy that has shielded legal opinions that are controversial, even dubious or shoddy, from both congressional oversight and legal interpretation. Had this bill been law in 2002, it’s highly unlikely the U.S. would have engaged in human rights abuses at Abu Ghraib, as the legal justification provided by the OLC’s so-called ‘Torture Memos’ would not have withstood public scrutiny,” said Demand Progress Legal Director Ginger Quintero-McCall. “The DOJ OLC Transparency Act would put an end to secret law via OLC opinion by empowering Congress to protect its own oversight capabilities, incentivizing OLC attorneys to produce high quality legal analysis, and ensuring that every member of the public understands what laws the country is actually operating under. We commend the legislation introduced today by Senators Duckworth and Leahy and call on every member of Congress who cares about government accountability to support this important legislation.”