Leahy Issues Subpoena For OLC Documents

Leahy Schedules November 18 Deadline
To Receive Documents, Testimony From Attorney General Mukasey

WASHINGTON (Tuesday, October 21, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) issued a subpoena Tuesday compelling Attorney General Michael Mukasey to provide testimony and related documents to the Senate Judiciary Committee about legal analysis and advice from the Department of Justice Office of Legal Counsel (OLC) related to the Bush administration’s terrorism policies, including detention and interrogation policies and practices.

Leahy and other Judiciary Committee members have sought information related to the administration’s detention and interrogation policies for more than five years.  Most recently, in August, Leahy and Judiciary Committee Ranking Member Arlen Specter (R-Pa.) wrote to White House Counsel Fred Fielding requesting specific OLC documents and a comprehensive index of all legal memoranda, letters, and opinions issued by the OLC to provide legal advice to the White House and agencies within the executive branch related to administration’s interrogation and detention policies.   Additional requests for information about these policies were made on June 16, 2003; May 12, 2004; June 15, 2004; October 29, 2004; December 21, 2004; January 4, 2005; November 16, 2006; and October 25, 2007.

“This administration’s stonewalling leaves this Committee without basic facts that are essential to carrying out its oversight responsibilities,” Leahy wrote to Mukasey.  “There is no legitimate argument for withholding the requested materials from this Committee.  The Executive Branch should not obstruct Congress from conducting its constitutional oversight and lawmaking duties by making sweeping assertions of secrecy and privilege.”

Leahy continued, “I continue to hope that the administration will cooperate with the Committee.  This Committee remains willing to work to with you and accommodate legitimate concerns in connection with your compliance with this subpoena.”

The subpoena issued Tuesday by Leahy seeks specific documents from the Office of Legal Counsel, as well as any lists, logs or indices of OLC memoranda, opinions or legal advice created since September 11, 2001.  In a cover letter to Mukasey, Leahy indicated that the subpoena may be initially satisfied should the Justice Department provide the Judiciary Committee with a comprehensive and unredacted index of the subpoenaed legal memoranda.

The Senate Judiciary Committee authorized Leahy to issue the subpoena at a September 25 business meeting.  The deadline for the testimony and documents is November 18 at 10 a.m.

Below is the text of the cover letter sent to Attorney General Mukasey and the text of the issued subpoena.  PDFs are also available online.

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October 21, 2008 

The Honorable Michael B. Mukasey
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC  20530

Dear Attorney General Mukasey:

After more than five years of requests for information and documents concerning legal analysis and advice from the Department of Justice’s Office of Legal Counsel (OLC) related to the administration’s detention and interrogation policies, the Senate Judiciary Committee has still only seen a small portion of the documents we have sought.  Indeed, we have learned far more about OLC opinions from press accounts and books than we have from the Executive Branch.  From the OLC’s approval of abusive interrogation techniques in the so-called  Bybee, or “torture,” memo, through the revelation just last week that the White House issued secret authorizations justifying the CIA’s interrogation program, members of this oversight Committee have seen far too many surprises. 

This Committee is responsible not only for oversight of OLC, but also for writing the laws on many of the subjects on which OLC has opined.  Nonetheless, we only recently received access to redacted versions of OLC legal opinions related to the CIA’s interrogation program, and we have been refused other documents that we have repeatedly sought, including something as fundamental as an index of OLC opinions.  In another area, the Department only recently posted a June 29, 2007, OLC opinion on its exempting a grant from nondiscrimination provisions of the law.  

This administration’s stonewalling leaves this Committee without basic facts that are essential to carrying out its oversight responsibilities.  On August 19, Senator Specter and I tried again to obtain the administration’s cooperation.  We sent a letter to Mr. Fielding, the White House counsel, requesting specific documents, as well as an index of OLC opinions.  A copy of this request was also sent to you.  Our requests were, again, rebuffed, without even a commitment to work with us on providing an index. 

After Mr. Fielding referred our requests to the Justice Department, and after receiving an inadequate written response from Mr. Nelson, on September 11, I provided notice that authorization of a subpoena for OLC materials would be on the Committee’s business agenda.  On September 18, the Committee discussed the matter, and Senator Kyl requested that the matter be held over for one week.  On September 25, after further discussion, the Committee voted to authorize the subpoena.  In the intervening time, there has been no effort by the Department to accommodate the Committee’s needs.  Instead, we have recently learned of previously undisclosed memoranda at the White House and a previously undisclosed OLC opinion from more than 15 months ago.

Attached is a subpoena for documents that constitute OLC’s legal analysis and advice from September 11, 2001, to the present concerning the administration’s national security practices and policies related to terrorism. The subpoena seeks specific documents as well as any lists, logs or indices of any and all OLC memoranda, opinions or legal advice created during that time period.  You may satisfy this subpoena initially by providing a comprehensive and unredacted index of the subpoenaed legal memoranda.

There is no legitimate argument for withholding the requested materials from this Committee.  The Executive Branch should not obstruct Congress from conducting its constitutional oversight and lawmaking duties by making sweeping assertions of secrecy and privilege.  To the extent necessary, the Committee is willing to accommodate legitimate redactions of operational details in these documents in order to protect national security information.  We ask that you segregate any documents containing classified national security information and deliver those separately to the Office of Senate Security in Room SVC-217 of the Capitol, where they will be maintained in compliance with all security laws and regulations.  Only Committee members and appropriately cleared staff will then be permitted to review them.

I continue to hope that the administration will cooperate with the Committee.  This Committee remains willing to work to with you and accommodate legitimate concerns in connection with your compliance with this subpoena.  I look forward to your compliance with the Senate Judiciary Committee’s subpoena by the return date of November 18, 2008.

Sincerely, 

PATRICK LEAHY    
Chairman                   

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UNITED STATES OF AMERICA

Congress of the United States

To Michael Mukasey, Attorney General of the United States, Greeting:

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED:

to appear before the Committee on the Judiciary of the Senate of the United States, on November 18, 2008 at 10:00 am in Room 226 of the Dirksen Senate Office Building, Washington, D.C., then and there to testify about what you know relative to the Committee’s inquiry into legal advice provided by the Department of Justice’s Office of Legal Counsel concerning the Administration’s national security practices and policies related to terrorism, including the Administration’s policies and practices related to detention and interrogation of detainees in U.S. custody; and to bring with you the documents described in Attachment A under the terms and conditions stated therein.  A personal appearance at the above-referenced date and time will not be necessary if the documents described in Attachment A are delivered to the Committee’s offices or, if they contain classified national security information, to the Office of Senate Security at least 24 hours prior to the scheduled return.

Hereof fail not, as you will answer your default under the pains and penalties in such cases made and provided. 

To any Committee staff member or U.S. Marshal to serve and return.

Given under my hand, by authority vested

in me by the Committee, on this    21      day

of       October                            , 2008.   

                                                                           

Senator Patrick Leahy

Chairman, Committee on the Judiciary

United States Senate                                                           

Attachment A

Documents Subpoenaed

1. To provide the Committee with all documents constituting the legal analysis and advice the Department of Justice’s Office of Legal Counsel  (“OLC”) provided to any agency, office, entity, or officer of the Executive Branch from September 11, 2001 to the present, concerning the Administration’s national security practices and policies related to terrorism, and any related document: including complete and unredacted versions of the following:

A. Memorandum for Alberto R. Gonzales, Counsel to the President, Re “Protected Persons” in Occupied Iraq (March 18, 2004).

B. Any final OLC memorandum or written legal advice concerning applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49, including any March 19, 2004 memorandum, Re: Applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49.   

C. Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense (“DOD”), from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (October, 2001).

D. Memorandum for Daniel Bryant, Assistant Attorney General, Office of Legislative Affairs, from John Yoo, Deputy Assistant Attorney General, OLC, Re: Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (June 27, 2002).

E. Memorandum for William J. Haynes II, General Counsel, DOD, from Jay S. Bybee, Assistant Attorney General, OLC, Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002).

F. Any finalized memorandum from the Department of Justice, Re: Liability of interrogators under the Convention Against Torture and the Anti-Torture Act when a prisoner is not in U.S. custody. 

G.  Memorandum for John Yoo, Deputy Assistant Attorney General, OLC, from James C. Ho, Attorney-Advisor, OLC, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1, 2002), or any other finalized memoranda or opinions provided by the OLC regarding the interpretation of Common Article 3 of the 1949 Geneva Convention relating to the treatment of prisoners of war.

H. Memorandum for Alberto Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, OLC, Re: Legality of the use of military commissions to try terrorists (Nov. 6, 2001).

I. Any and all legal advice issued by the OLC concerning written authorizations from the White House of any Central Intelligence Agency (“CIA”) interrogation program or practice.

J. All lists, logs, or indices of any kind of any and all legal memoranda, letters, or opinions that were issued by the OLC from September 11, 2001 to the present, to provide legal advice to the White House or any department or agency of the Executive Branch (including the Department of Justice and its components) concerning the Administration’s national security practices and policies related to terrorism.

2. As an alternative to producing the documents itemized in 1. A-J, this subpoena can be initally satisfied by producing and delivering a complete and comprehensive index of all legal memoranda, letters, or opinions that were issued by the OLC from September 11, 2001 to the present, to provide legal advice to the White House or any department or agency of the Executive Branch (including the Department of Justice and its components), concerning the Administration’s national security practices and policies related to terrorism.

This index shall:

(i) Identify the agency or official who requested the legal advice from the OLC;

(ii) Identify the recipient of each legal opinion, letter, or memorandum;

(iii) Identify the title of each memorandum, letter, or opinion;

(iv) Identify the DOJ or OLC official who signed the opinion, memorandum, or letter;

(v) Include a brief description of the legal issues addressed by the opinion, memorandum, or letter.

Instructions

1. To the extent dates for the documents in this subpoena are given these dates are a guide, if they are not accurate the itemized documents shall still be provided if they otherwise meet the description given.

2. In complying with this subpoena, you are required to produce all final versions of all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agent, employee, or representative acting on your behalf. You are also required to

produce documents that you have a legal right to obtain, that you have a right to copy, or to which you have access, as well as documents that you have placed in the temporary possession, custody, or control of any third party.

3. No documents as defined herein called for by this request shall be destroyed, modified, removed, transferred, or otherwise made inaccessible to the Committee. If you have knowledge that any subpoenaed document as defined herein has been destroyed, discarded, or lost,  identify the subpoenaed document and provide an explanation of the destruction, discarding,  loss or disposal and the date at which the document was destroyed, discarded or lost.

4. This subpoena is continuing in nature. Any document not produced because it has not been located or discovered by the return date shall be provided immediately upon location or discovery subsequent thereto with an explanation of why it was not located or discovered by the return date.

5. If you believe any responsive documents are protected by a privilege, you are required to provide a privilege log that (1) identifies any and all responsive documents  to which the privilege is asserted, (2) sets forth the date, type, addressee(s), author(s) (and,  if different, the preparer and signatory), general subject matter, and indicated or known  circulation of the document, and (3) states the privilege asserted in sufficient detail to ascertain the validity of the claim of privilege.

6. Production with respect to each document shall include all electronic versions and data files from email applications as well as from word processing, spreadsheet, or other electronic data repositories applicable to any attachments, and shall be provided to the Committee where possible in its native file format and shall include all original metadata for each electronic documents or data file.

7. To the extent possible, documents containing classified national security information must be segregated from those not containing such information. All classified documents must be handled consistent with relevant security laws and regulations and delivered to the Office of Senate Security in room SVC-217 of the United States Capitol.

Definitions

1. The term "document" as used in this subpoena includes all emails, memoranda, reports, agreements, notes, correspondence, files, records, and other documents, data or information in any form, whether physical or electronic, maintained on any digital repository or electronic media, and should be construed as it is used in the Federal Rules of Civil Procedure.

2. The terms "related", "relating", "regarding", or "concerning", with respect to any given subject, shall be construed broadly to mean anything that constitutes, contains, embodies, reflects, identifies, states, refers to, deals with or is in any manner whatsoever pertinent to the subject.

3. The terms "including" and "includes," with respect to any given subject, shall be construed broadly so that specification of any particular matter shall not be construed to exclude any documents that you have reason to believe the Committee might regard as responsive.

4. The term "Department of Justice" includes without limitation, anyone presently or formerly employed, assigned, or detailed there.

5.  The term “Department of Defense” includes without limitation, anyone presently or formerly employed, assigned, or detailed there.                                                                              

6.  The term “Central Intelligence Agency” includes without limitation, anyone presently or formerly employed, assigned, or detailed there.

7. The term "White House" includes: all offices, individuals, or entities within the White House Office, including the Office of the Counsel to the President, the Office of the Chief of Staff, and the President himself; the Office of the Vice President, including the Vice President himself; and the National Security Council and its staff.

7. The term "Administration" refers to the Executive Branch during the terms of presidency of George W. Bush.

8. The terms "you" and "your" include all offices, individuals, or entities within the office of the Department of Justice, and, without limitation, anyone presently or formerly employed, assigned, or detailed there.

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