Leahy Postpones Return Of Subpoena For OLC Documents Justice Department Offers To Provide OLC Documents

WASHINGTON (Monday, Nov. 17, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Monday postponed the return date of a Committee-issued subpoena for documents from the Department of Justice Office of Legal Counsel.  The subpoena, which was served on Attorney General Michael Mukasey, commanded the Attorney General to provide the legal advice issued by the Justice Department’s Office of Legal Counsel (OLC) concerning the administration’s national security policies related to terrorism.

In a letter sent to Leahy dated November 14, the Department of Justice indicated that six unredacted, unclassified documents related to the Committee subpoena would be provided to Committee members on November 17 and other documents would be made available for review.

“I appreciate the efforts of the Justice Department to respond to this subpoena, and was pleased to learn of their intention to provide materials not previously made available to us.  This is a good start,” said Leahy.  “I will work in the coming days with the Justice Department to ensure that the Committee receives access to these promised documents, and I am fully confident that the remaining OLC documents will be reviewed under the new administration.”

“Under the Bush-Cheney administration, the Office of Legal Counsel secretly misconstrued laws passed by Congress.  By writing secret law, OLC has given this administration a legal ‘free pass’ for its misguided policies, including its policies concerning interrogation and torture.  The advice we have seen has been deeply flawed, sloppy, and wrong.  Today, we still don’t know the full scope of these ill-advised policies.” 

For more than five years, Leahy and other members of the Senate Judiciary Committee have sought OLC documents concerning the Bush administration’s terrorism policies, including itsdetainee and interrogation practices.   In an August letter to White House Counsel Fred Fielding,Leahy and Committee Ranking Member Arlen Specter (R-Pa.) again requested a comprehensive index of legal memorandum, letters and opinions from the Office of Legal Counsel.  In September, the Judiciary Committee authorized Leahy to issue subpoenas for OLC’s legal advice relating to the administration’s national security policies.

The November 14 letter from the Justice Department indicated that the Committee would receive the following documents on Monday:

  • March 18, 2004 memorandum regarding “Protected persons’ in Occupied Iraq” (subpoena item 1.A)
  • November 6, 2001 memorandum entitled “Re: Legality of the Use of Military Commissions to Try Terrorists” (subpoena item 1.H)
  • February 7, 2002 memorandum entitled “Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949”
  • October 23, 2002 memorandum entitled “Authority of President Under Domestic and International Law to Use Military Force Against Iraq”
  • November 8, 2002 memorandum entitled “Effect of a Recent United Nation’s Security Counsel Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq”
  • December 7, 2002 memorandum entitled “Further Material Breach Under U.N. Security Counsel Resolution 1141 as a Result of False Statements or Omissions in Iraq’s WMD Declaration”

The Justice Department also indicated on November 14 that additional documents would be made available for Committee review, including:

  • October 23, 2001 memorandum regarding “Authority for Use of Force to Combat Terrorist Activities Within the United States” (subpoena item 1.C)
  • June 27, 2002 memorandum regarding the “Applicability of 18 U.S.C. 4001 (a) to Military Detention of United States Citizens” (subpoena item 1.D)

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