The FBI has no objection to giving us the opinion, and has said that they would do so if your office did not object. Authorizing the FBI to transmit the opinion to us is one way to resolve this controversy. Sincerely, Don Edwards Don Edwards Chairman Subcommittee on Civil and Constitutional Rights DE: jdb On December 7, 1989, I wrote to you about the Subcommittee's For example, in 1983-84, the Committee on the Judiciary investigated the role of the Department of Justice in the withholding of certain EPA documents from the Congress. In the course of that investigation, the Justice Department provided the Committee with a 1984 OLC opinion addressed to the Attorney General, which is reprinted in the appendix to the Committee's report. Additionally, the appendix to the EPA report contains a In April 1985, the House Committee on Government Operations conducted a hearing on regulations governing access to Nixon Presidential materials. Charles Cooper, Assistant Attorney General, Office of Legal Counsel, testified and submitted for the record an OLC opinion he had prepared at the request of OMB. The opinion is reprinted in the hearing record after Mr. Cooper's testimony. The Honorable Richard L. Thornburgh Page 2 Moreover, the appendix to that hearing contains a letter from John Bolton, Assistant Attorney General for Legislative Affairs, to Chairman Glenn English noting that Justice was "anxious to cooperate to the greatest extent possible with the Subcommittee's inquiry." Referring specifically to the OLC opinion requested by the Subcommittee, Mr. Bolton stated, "We hope to satisfy members of the Subcommittee and others who may disagree with our legal opinion that the opinion is consistent with governing legal authorities, is soundly reasoned, and in any event represents OLC's best, independent legal analysis of the questions presented. Accordingly, we are willing ... to furnish to the Subcommittee ... the Office of Legal Counsel opinion ...." Mr. Bolton noted that one category of documents would be withheld, namely those that "reflect the purely internal deliberations and work products of Justice Department attorneys." This suggests that OLC opinions were not considered internal deliberative documents. In addition to the foregoing and the examples listed in my December 7 letter, we found the following instances within the last decade in which OLC opinions were provided to Congressional committees and printed in hearing transcripts. - March 1982. The House Subcommittee on Courts, Civil Liberties, and the Administration of Justice held hearings on the implementation of the Equal Access to Justice Act. The appendix to the printed transcript of the hearings contains an OLC opinion to John Fowler of the Department of Transportation. -- March 1983. Donald J. Devine's prepared statement before -- June 1983. In testimony before the House Subcommittee on Administrative Law and Governmental Relations, Christopher DeMuth of OMB cited two OLC opinions in his prepared statement, and the opinions were reproduced in full in the hearing appendix. -- June 1983. In the course of testifying before the House Subcommittee on Immigration, Refugees, and International Law, Assistant Attorney General Theodore Olson included for the record a copy of his OLC opinion for David W. Crosland of INS. August 1986. At a hearing before the House Committee on Government Operations on oversight of the Office for Civil The Honorable Richard L. Thornburgh Page 3 Rights at the Department of Health and Human Services, There are undoubtedly other instances in which OLC opinions were provided to Congressional committees but not made part of any hearing record. As before, this controversy can be resolved simply by authorizing the FBI to release the opinion to us. The above evidence indicates that this action would be fully consistent with the past practices of the Department of Justice. Sincerely, Don Edwards Don Edwards Subcommittee on Civil and Constitutional Rights DE: jdb The Attorney General has asked me to respond to your letter of December 7, 1989, which cited prior occasions when copies of Office of Legal Counsel opinions were provided to Congress. I am personally familiar with only the two most recent examples that you cited. The contexts of both disclosures were quite different from the present context (the OLC opinion on the FBI's authority to arrest suspects abroad). OLC's opinion on the assassination ban was actually written with the expectation that it would be shared with the intelligence committees, because the CIA Director (the client receiving the advice) had previously made such a commitment to the committees. While the OLC opinions for Attorney General Meese that were shared with the Iran-Contra committees were as confidential at the time they were written as the opinion you have requested, special circumstances warranted subsequent disclosure to Congress: In light of the allegations of wrongdoing in the Iran-Contra matter, the Administration decided, consistent with the established policy of not invoking privilege to protect wrongdoing, that all privileges would be waived. I am not aware of the circumstances of five or more years ago that led to the other disclosures you cited. I note that the opinion released in 1982 was at the time four years old and concerned the relatively non-sensitive topic of appropriations law rules for different types of expenses incurred in FBI undercover operations. I do not know whether any of these disclosures were one of those rare occasions where Executive Branch recipients of OLC opinions, unaware of their confidential nature, have made them public. When this has occurred, OLC has been willing to provide copies of such already-public opinions to interested congressional committees. Since the confidentiality of the opinion you have requested has fortunately been preserved, this circumstance does not pertain here. |