Last Thursday, the Obama Administration ended the internal dispute about the release of additional memos regarding enhanced interrogation techniques by making public lightly redacted versions of four Office of Legal Counsel memoranda, one issued in 2002, the other three in May of 2005. Here is a highly selective summary of some of their more salient features. (more…)
Archive for the ‘OLC Opinions’ Category
Last week, the Washington Post reported that Attorney General Eric Holder rejected the advice of the Office of Legal Counsel on the bill to grant D.C. a member of the House of Representatives. (OLC reportedly advised Holder that the proposal would be unconstitutional.) Ever since, the blogosphere has been abuzz with charges of impropriety. John McGinnis’s post on this site is a leading example. McGinnis writes “less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences.” Ed Whelan has made similar claims at NRO and in last Sunday’s Washington Post. The charge that Eric Holder has subordinated the Justice Department’s legal interpretations to his own political preferences is a serious one. In fact, if the charge is true, Eric Holder should resign and, if he refuses to do so, President Obama should fire him.
But are the charges true? Not based on anything in the Washington Post story. (more…)
Today’s post is by guest contributor John O. McGinnis
Attorney General Holder has pledged to restore the rule of law, implicitly suggesting that it was weakened during the Bush Administration. But less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences. In a move that appears unprecedented, he has disregarded the opinion of the Office of Legal Counsel on the constitutionality of pending legislation without overruling OLC with his own reasoned analysis. If he recommends that the President sign the bill under these circumstances, he will be shirking the Attorney General’s primary duty—aiding the President in following his own oath to uphold the Constitution.
The bill in question provides voting representation to the District of Columbia. The Constitution provides that “The House of Representatives shall be composed of Members chosen every second year by the People of the several states.” The District of Columbia is not a state. Its proponents argue that Congress’ power to exercise legislative power over the District gives it authority to provide a Member from the District. But Congress must exercise its authority consistently with the express commands of the Constitution.
It is the long standing practice of the Department of Justice to provide constitutional analysis of any bill that may be presented to the President so that the President can fulfill his constitutional duty of signing only bills that are constitutional. As a result, the Office of Legal Counsel had previous occasion to conclude that this giving voting representation to the District is unconstitutional. According to uncontradicted news reports, the Obama administration’s OLC affirmed the same conclusion.
One kind of issue about presidential control over executive government with proven implications for “science-bending” concerns presidential control over executive branch communications with Congress. Transparency, and all the contributions to “honest brokering” and effective democracy through the “marketplace of ideas” that go with it, is impaired if the President takes the position that communications with Congress or the public must be pre-cleared politically. One notorious example during the Bush administration was the suppression of projections concerning the cost of certain health-care measures. Some such controls are of long-standing, however. Thirty-two years ago, when the author was General Counsel of the US Nuclear Regulatory Commission, the Office of Management and Budget was “coordinating” (i.e., pre-clearing) communications and testimony to Congress about legislative proposals and budgetary matters. The Commission’s nominal independence (it was of course an element of the executive branch, but its statutes provided explicitly for direct communication) softened these controls; but within the Commission itself, its Bureau “executives” sometimes exercised rather rigorous control over what they would permit their staff members to tell the Commission about perceived nuclear power risks – a rather unfortunate situation. (more…)
In the days after September 11, the Justice Department’s Office of Legal Counsel authored a spate of legal opinions constructing a theory of the powers of the presidency that essentially amounted to dictatorial powers. We have known this for some time, of course. Enough of the legal memoranda have been disclosed or leaked to reveal the contours of that theory, and a number of its details, besides. It is also plain, though, that there are literally hundreds of pages — probably thousands of pages — of legal analysis from that post-September 11 period that remain undisclosed. The ACLU and Propublica are maintaining a running list of still-undisclosed memos, which shrinks a little when additional memos come to light and grows a little when evidence emerges — often from newly disclosed memos — of the existence of additional memos that were not previously suspected to exist. (This business of keeping track of undisclosed memos can be tricky. Both the ACLU’s list and Propublica’s appear reflect the March 2 releases, even though Propublica’s page still bears a January 28, 2009 date at the top. It would be nice if they changed that to reflect the latest updates.)
On March 2, the Justice Department did release nine memos that we had not seen before. These have widely been reported as memos from the 2001-2003 period, and seven of them are. However, as we reported on Tuesday and Jack Balkin reported on Wednesday, the most remarkable of the nine memos are two recent ones, from October 6, 2008 and January 15, 2009. The other seven give us more knowledge into the specifics of the Bush administration’s theory of dictatorial presidential power — one, for instance, concludes that the Fourth Amendment does not apply at all to military operations hunting al Qaeda within the United States. These two, however, repudiate some of the basic building blocks of the legal reasoning that OLC was using in the post-September 11 period to construct these and other legal memos. Apparently, the outgoing administration had been rethinking the dictatorial theory and decided that it was important to state that a number of the legal arguments upon which it was based were wrong. (more…)
The Bush administration asserted notoriously aggressive and broad claims of presidential authority to violate acts of Congress when the President believed that doing so advanced the national security interests of the United States – and the Office of Legal Counsel in the Department of Justice was repeatedly the source of legal memoranda that purported to justify those claims. During the transition from the Bush to the Obama administrations, civil liberties groups and others called for the rapid repudiation of these memoranda, a good number of which remain classified and undisclosed. When Dawn Johnsen, slated to be the next head of OLC, testified before the Senate Judiciary Committee last week, she was questioned by several Democratic Senators who were interested in how quickly she was going to re-examine and repudiate these memoranda. Senator Whitehouse, for example, urged that Professor Johnsen quickly reconsider declassifying a number of these OLC opinions – which he has seen on a classified basis – because, he said, the reason they seemed to be classified was not due to a fear of revealing national security information, but instead out of a desire to “protect them from scrutiny because they were so badly done.” (more…)
On Tuesday, February 25 at 2 p.m., the Senate Judiciary Committee is schedule to convene confirmation hearings for Dawn Johnsen slated as head of the Office of Legal Counsel and for David Kris to be head of the National Security Division. OLC is the epicenter for legal interpretations regarding surveillance, interrogation and detention, while NSD is operations central for law enforcement efforts to defeat terrorism within the United States. Both the legal interpretations and the operational policies of the Bush Administration came under enormous criticism, and a central theme of the hearings is certain to be trying to pin down each nominee on how much the Obama administration will differ from the approaches taken under President Bush. Copies of Professor Johnsen’s and Mr. Kris’ responses to the Committees questionnaire have been posted on the Committee website, here and here along with letters the Committee has received in support of each nominee.
Some of the most aggressive positions on executive authority taken during the Bush Administration are those found in the infamous “Torture Memo.” We now know that this memo, dated August 1, 2002, provided the legal underpinnings for aggressive interrogation practices, including waterboarding, of a number of detainees. After a series of questionable interpretations of statutory law, the memo concludes that the president as commander-in-chief can sanction practices that violate the Convention Against Torture as well as US statutory law prohibiting torture. When this memo was leaked to the press, the Bush Administration withdrew it, but not before the legal damage had been done. The role of Office of Legal Counsel lawyers, the Vice President’s office, and others, have been the subject of numerous congressional hearings, including a series of five focused on them held by the House Judiciary Committee during the 110th Congress.
President Obama has repudiated interrogation practices that the Torture Memo held to be legally permissible, and his expressed preference for moving forward rather than engaging in recriminations argues for closing the door on this chapter in the war on terror. Nonetheless, a question lurking in the controversy over the Bush Administration’s interrogation policies has been whether the legal authorization of these practices justified disciplinary or other action against the lawyers who drafted these memos. Now, Mike Isikoff of Newsweek is reporting that the Office of Professional Responsibility has written a draft report critical of the performance of OLC lawyers in drafting the memo. This report, which was circulated to Attorney General Mukasey sometime prior to his leaving office, looks like it will land on Attorney General Eric Holder’s desk. When it does, it will force the Department of Justice to confront an uncomfortable question: was the legal analysis deliberately shaped to provide legal cover for aggressive interrogation practices? If the evidence suggests that possibility, it will become more difficult to defend the Torture Memo as a misguided, yet good faith, interpretation of the law – and the chapter door will have to remain open a little longer.
As we have noted, in the final weeks of the Bush Administration the Office of Legal Counsel released a number of opinions, both memoranda and letters, that had not previously been publicly disclosed, although some had been shared with the Congress. Propublica and the ACLU are both monitoring a rather long list of as-yet-undisclosed memos.
The recent disclosures have not entirely satisfied some members of Congress. Representative Brad Miller (D-NC) has introduced H. 278, “The OLC Reporting Act of 2009.” The bill, which is substantively the same as S3501 introduced by Senator Feingold in the 110th Congress, would require the Attorney General to notify Congress anytime DOJ issued an “authoritative interpretation” of a statute that concluded it was unconstitutional in any particular application; that employed the canon of interpreting statutes to avoid constitutional concerns for reasons of separation of powers or intruding into the President’s powers; that relied upon a legal presumption against applying it to any actors in or actions of the executive branch; or that concluded part of the statute had been superseded by implication by a later enacted statute.
Each of these techniques of legal interpretation figured prominently in the legal analysis of significant opinions issued by the Office of Legal Counsel during the Bush Administration. They each have the result of changing the effective coverage of a piece of legislation enacted by the Congress. A dramatic example: in the White Paper the Department of Justice released to explain why the Foreign Intelligence Surveillance Act did not prevent the President from authorizing warrantless surveillance, the Justice Department relied in part on the argument that the FISA had been impliedly repealed by the Authorization on the Use of Military Force. This was a particularly weak argument – it stretched the doctrine of implied repeal quite far – but the relevant point here is that had Congress known about this interpretation and thought it wrong, it could have enacted language making clear that it intended no implied repeal when it enacted the AUMF. But it did not know, and may never have known except that the New York Times story exposed the NSA program, and that compelled the administration to issue the White Paper defending it. Congress cannot exercise its governance responsibilities in regards to a problem if they don’t know the problem exists. The Reporting Act is aimed at surfacing similar legal interpretations in the future.
In one of the recently released OLC opinions, the Office of Legal Counsel concludes that the 2008 version of the OLC Reporting Act is unconstitutional. Stay tuned for more discussion of this – and watch for questioning about it at Dawn Johnsen’s confirmation hearings as incoming head of OLC. She helped write the Reporting Act.