NEW YORK – The Knight First Amendment Institute at Columbia University today published 15 Office of Legal Counsel (OLC) memos relating to the president’s war powers. Several of the opinions address the War Powers Resolution, a 1973 statute that limits the circumstances in which the president can commit the United States to armed conflict without the consent of Congress. The Institute obtained the documents as part of a landmark legal settlement of a lawsuit seeking disclosure of OLC opinions written more than 25 years ago. The Institute has already published hundreds of other OLC memos obtained through the settlement, and it expects to publish more in the coming weeks.
“Since its establishment almost a century ago, the Office of Legal Counsel has played an immensely important role in shaping government policy—including on matters relating to war, foreign policy, and the separation of powers,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “These opinions have been withheld for far too long, but we’re pleased to be able to publish them today.”
The documents published today address legal questions raised by the United States’s involvement in World War II and the Korean and Vietnam wars, as well as military actions in Libya and the treatment of prisoners of war. The documents include:
- Termination of plant seizures (August 18, 1945)
- Claims arising out of the loss of or damage to property deposited by alien enemies with United States Marshals (December 12, 1945)
- Determinations regarding cessation of hostilities, termination of the war and of the emergency (December 21, 1945)
- Duties and responsibilities of the FBI, as affected by Proclamation of Cessation of Hostilities (January 21, 1947)
- German specialists and scientists in the United States under the protective custody of the Joint Intelligence Objectives Agency (December 3, 1947)
- German scientist program of the armed service departments (February 10, 1948)
- The power of the President to send American troops to Palestine (April 7, 1948)
- Trial of American citizens before courts established by the American Military Government in Germany (February 4, 1949)
- Possible Removal of Japanese From Alien Enemy Classification (January 11, 1952)
- Use of Troops in Vietnam and Cambodia (April 12, 1975)
- Retaliation for Soviet Attack on Korean Airliner (September 6, 1983)
- War Powers Resolution: Detailing of Military Personnel to the CIA (October 26, 1983)
- Treaty Obligations Governing Prisoners of War (October 28, 1983)
- War Powers Resolution and Military Action Against Libya (January 13, 1986)
- Legal Assessment of the War Powers Resolution National Security Council (June 9, 1993)
Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to its request, the Institute filed suit, Francis v. DOJ, on behalf of five scholars, the Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994, and released 230 of the opinions listed on those indexes. It also agreed to disclose a list of classified OLC opinion titles written between 1974 and February 15, 1994.
This settlement does not address the OLC’s obligations to publish contemporary opinions. The Knight Institute represents Campaign for Accountability in a separate lawsuit challenging the OLC’s failure to disclose its opinions under the Freedom of Information Act’s “affirmative disclosure” provisions. In 2020, then-Judge Ketanji Brown Jackson issued a decision allowing the case to move forward with respect to one especially important category of OLC opinions: opinions that resolve disputes between federal agencies. That case is currently pending before Judge Jia M. Cobb in the federal district court in Washington, D.C.
“Except in the most extraordinary circumstances, the public should have access to the OLC’s formal opinions when they’re written, not decades later,” said Alyssa Morones, legal fellow at the Knight First Amendment Institute. “Congress and the Biden administration shouldn’t wait for the courts to address the OLC’s transparency obligations.”
The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and is being updated with the hundreds of opinions produced to date in Francis v. DOJ. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its own online database—a process that generally happens without public notice.
Access the Knight Institute’s OLC Reading Room here.
Read more about Francis v. DOJ here.
Read more about Campaign for Accountability v. DOJ here.
For more information, contact: Lorraine Kenny, firstname.lastname@example.org.