On March 2, the U.S. Department of Justice (DOJ) released a set of previously classified memoranda from the Office of Legal Counsel (OLC). OLC produced the documents for senior members of the George W. Bush administration. The release is yet another step in the Obama administration's implementation of its commitment to transparency.

In total, nine memoranda were released and were largely dated between 2001 and 2003. However, more secret memos exist; the American Civil Liberties Union (ACLU) has requested 41 classified OLC memos, including those released by DOJ under the Freedom of Information Act.

The OLC issues legal opinions at the request of the White House Counsel. These opinions effectively have the weight of law, as OLC's decisions are binding on executive branch agencies. When OLC memos are classified, agencies operate under what many transparency advocates have called "secret law," unknown to the public.

Generally, OLC memos address specific policy proposals, but in the years following the Sept. 11, 2001, terrorist attacks, they were used to address wider areas of law and amorphous hypothetical scenarios. Crafted in an environment of fear and uncertainty, these memos gave President Bush broad legal authorization to wage a war on terrorism.

Some of the issues covered by the released memos included the president’s authority over detainees, the use of military force against terrorism, military detention of U.S. citizens, and the power to transfer captured suspects to foreign custody.

In a March 2002 memo, for instance, the OLC argued that the president "appears to enjoy exclusive authority" on the issue of how to handle captured enemy soldiers because the power "is not reserved by the Constitution in whole or in part to any other branch of the government." Article I, Section 8 of the U.S. Constitution, however, gives Congress the power to "declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." The OLC dismissed this clause as pertaining to captured property only as distinct from captured persons.

An October 2001 memo serves as an eerie testament to the rights the government was willing to take away from citizens in exchange for the appearance of safety and security. The OLC stated that "the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks."

Also included in the release was an 11-page, Jan. 15, 2009, memo written by Steven Bradbury. As the Bush administration waned, Bradbury wrote that many of the memos authored between 2001 and 2003 "do not currently reflect, and have not for some years reflected, the views of OLC." Bradbury retracted the arguments used in the released memos, as well as others that are still classified, such as previous OLC opinions concerning Foreign Intelligence Surveillance Act (FISA) applicability.

In a footnote, Bradbury wrote that the memo "is [not] intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility." The inclusion of this statement is rather unusual, but it is likely due to an anticipated inquiry within the DOJ by the Office of Professional Responsibility. The report, currently in draft form, is apparently critical of the conduct of the three primary authors of the 2001-2003 OLC memoranda – John Yoo, Jay Bybee (now a federal appeals court judge), and Bradbury.

The memos appear to have been interpretations of existing law, not operational plans – their disclosure did not pose a threat to national security. Instead, it seems the Bush administration withheld the documents to avoid public controversy.

The release of the memos is a positive sign of transparency at DOJ amidst otherwise bleak prospects. The Obama administration committed itself to an "unprecedented level of openness," but the DOJ has been heavily criticized for pursuing the Bush administration’s application of the state secrets privilege in a key case concerning extraordinary rendition. More recently, the DOJ also decided to pursue the same course as the Bush administration in the search for missing Bush administration e-mails. The Obama administration sought to dismiss litigation over the e-mails, even though it recognizes that the restoration process for the e-mails is not complete.