Posts Tagged ‘yoo’

OLC Releases Two Profoundly Important Legal Memos

March 5, 2009

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 Hollow Men

March 3, 2009

For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”

Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.

First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)


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