After Alberto Gonzales took over as Attorney General at the Justice Department in February 2005, the Department issued secret memoranda justifying extreme interrogation techniques, reported the New York Times in early October. The importance of such secret opinions and the lack of independent oversight was magnified on Oct. 9 when the U.S. Supreme Court refused to review a case involving the alleged secret rendition and torture of a German citizen.

The Office of Legal Council (OLC) issued the memoranda supposedly stating that the combined effects of particularly harsh interrogation tactics are not in violation of the law or international treaties against torture, nor are certain extreme tactics, possibly including waterboarding (i.e., simulated drowning) or sleep deprivation. The Times reported that the memo's finding was issued in response to Sen. John McCain's (R-AZ) Detainee Treatment Act prohibition on cruel, inhuman and degrading treatment and would not force any changes in the Central Intelligence Agency's (CIA) interrogation tactics.

The OLC has the responsibility for issuing advisory opinions regarding the legality of executive branch activities. It has come under the spotlight due to its role in attempting to provide the legal foundations for the administration's counter-terrorism programs, including the National Security Agency's spying program and the CIA's rendition program and interrogation procedures.

In 2002, the OLC issued a memorandum limiting the definition of torture to that which causes pain akin to "organ failure, impairment of bodily function, or even death." This memo was later withdrawn by the OLC in 2004, after it created a firestorm of controversy and was replaced with a memo finding, "Torture is abhorrent both to American law and values and to international norms." The secret OLC memos reported by the Times appear to revise this 2004 memo.

The executive branch's questionable practices are made more troubling by the lack of oversight being exercised in this area by the courts, as evidenced by the Supreme Court's refusal to hear the case of Khaled el-Masri. Masri was allegedly subject to extraordinary rendition by the CIA, in which he was captured and transferred for interrogation purposes to countries that permit the practice of torture. The government claimed that Masri's lawsuit could not move forward due to state secrets, which allows the executive branch to declare certain materials or topics exempt from disclosure or review due to reasons of national security. A three-judge panel of the Fourth Circuit unanimously upheld the use of the state secrets privilege, and this decision will now stand after the Supreme Court's denial to review the decision.

The Supreme Court's decision underscores the lack of oversight and accountability of the executive branch's legally questionable counterterrorism programs. The OLC, an office which is now highly deferential to the views of the White House, offers secret legal memoranda for the executive to engage in questionable interrogation practices, and due to the state secrets privilege, the courts are unable to review the merit of the OLC's opinions. In essence, the OLC is given the unchecked legal authority to declare the legality of interrogation practices and rendition programs, in addition to the administration's other secret national security programs.

Some members of Congress advocate increasing Congress's oversight powers over intelligence agencies to alleviate such concerns. Sen. Daniel Akaka (D-HI) introduced the Intelligence Community Audit Act of 2007 (S. 82), which would give the Government Accountability Office the power to oversee intelligence agencies. In a letter to the Senate Intelligence Committee, the Director of National Intelligence opposed S. 82, stating that it "could risk upsetting the historic balance struck between the two branches of government in national security matters." Given the current lack of oversight and accountability of the executive branch's national security programs, the balance between the branches clearly needs to be re-struck.