When it comes to government secrecy, the Office of Legal Counsel at the Department of Justice ranks right up there with some of the stealthiest. Investigator Daniel Van Schooten of the watchdog Project on Government Oversight says we should know more about it. His group recently won a fight to make some of the agency's documents public.
Sharyl: Sometimes very, very important decisions are made in secret by this office of legal counsel?
Daniel Van Schooten: Absolutely.
Sharyl: Decisions that may impact many Americans?
Daniel Van Schooten: Yes. They have several examples that were made public: We have the torture memos that have affected America's interactions with the world. There was a memo that was released in 2014 about the killing of an American citizen who was working with a terrorist organization oversees.
Sharyl: The drone, was that the drone strike?
Daniel Van Schooten: The drone strike, that's right. So the use of drone strikes, the use of mass surveillance. These are all legal questions, or they all are partially legal questions about constitutionality and exactly how to define certain terms that even though they're arcane, they do affect the country as a whole.
Sharyl: There's a lot of secrecy surrounding the office of legal counsel. Why is that? Is it treated sort of like attorney client privilege because they are advising federal agencies and the White House?
Daniel Van Schooten: Yeah, so the office of legal counsel claims, whenever we ask for these opinions, they claim that it's attorney client privilege, and therefore needs to be confidential. But the problem is that the office of legal counsel knows that the rest of the government doesn't see these opinions as just legal advice; they see the opinions as official decisions. People who follow these legal opinions, essentially receive legal immunity for their actions, because the Department of Justice doesn't really like to prosecute people for following its own advice.
Sharyl: To be clear, what was the decision in the torture recommendation case?
Daniel Van Schooten: The decision from the office of legal counsel, was that what we'd call enhanced interrogation techniques did not constitute torture as defined by international law, or applicable US laws.
Sharyl: You recently received some documents from the office of legal counsel after a battle over them.
Daniel Van Schooten: Yeah.
Sharyl: What were you seeking in simple terms, and what did you learn from the documents you got?
Daniel Van Schooten: So we were seeking just the titles of their opinions from 2017.The titles are pretty bland, usually. They don't describe the decision, they just describe the subject. Like one of the ones that we got back after an appeal was the administration of the John F. Kennedy Centennial Commission. There's really nothing in that that should ever have been redacted.
Sharyl: What is it you learned, if anything, of some noteworthiness out of these documents or titles that you got?
Daniel Van Schooten: The big picture, we learned that there was really no reason for these to be redacted in the first place. On the more specific side, we learned that there's some ambiguity in the law regarding lobbying restrictions on very senior government officials.
The law says federal workers earning as much as a high level cabinet secretary — upwards of $200,000 a year -- are restricted on lobby work they can do after they leave the government. The documents obtained by the Project on Government Oversight reveal some federal workers in the last days of the Obama administration wanted to know: do the lobbying restrictions only apply to those earning exactly as much as a cabinet secretary— or also those who earn more?
Daniel Van Schooten: And so the office of legal counsel decided to interpret that law narrowly and say, it only applies, these lobbying restrictions only apply to people who make exactly as much as cabinet secretaries.
That decision, made in secret at the time, opened the door for high earners exiting the Obama administration to have more freedom to become paid lobbyists.
Sharyl: In the big picture, what do you think is the takeaway? If Americans think this is sort of an arcane group that doesn't matter.
Daniel Van Schooten: I'd say that it is an arcane group that does matter. When there's disagreement in the executive branch, someone needs to make that decision. And I'd rather have lawyers making it than a political appointee. But, they can't keep having it both ways. There needs to be transparency in these roles, so that we know what the government is doing, and we can fix it if they make a mistake.
In a newly released decision, the Justice Department Office of Legal Counsel concluded certain non-sports gambling-- as well as sports gambling-- that uses interstate or foreign communications is prohibited under a law called the Wire Act.