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More OLC Memos To Come?
Some followup by the New York Times on the Bush-era OLC memos released yesterday by the Justice Department...
Department officials have told the paper that they may soon release more secret opinions about counter-terror tactics. Those that contain classified information will need to be cleared with other government agencies before they can be released.
Separately, some Democrats are jumping on the controversial memos to bolster their argument for a commission to look into the Bush administration's counter-terror policies.
Senate Judiciary chair Pat Leahy, who has called for such a commission, put out a statement Monday that praised the Justice Department for releasing "some of these long-secret opinions." But it also argued that a "fuller review of these policies" by the new Obama team was needed.
And Sen. Sheldon Whitehouse said: "These memos appear to have given the Bush administration a legal blank check to trample on Americans' civil rights. We need to get to the bottom of what happened at O.L.C. and ensure it never happens again."
Also, the Times picks up on that footnote in the Steven Bradbury memo that we highlighted earlier. Reports the paper:
In a footnote to Mr. Bradbury's Jan. 15, 2009, memorandum sharply criticizing Mr. Yoo's work, Mr. Bradbury signaled that he did not want his repudiation of the legal reasoning employed by Mr. Yoo to be used against Mr. Yoo as part of the ethics probe.Mr. Bradbury wrote that his retractions were not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question" violated any "applicable standards of professional responsibility."
Josh
Zachary
Congress can help by passing a law which requires Congressional oversight and approval whenever a President purports to act pursuant to a secret legal opinion. Their use has now been proven to breed lawlessness. Of course, Congress must then actually exercise its oversight function, instead of giving a president whatever he wants.
March 3, 2009 4:45 PM | Reply | Permalink
There is a set of guidelines for OLC, which a number of legal experts, including Dawn Johnsen (the new head of OLC), drew up and which she wants to be codified by Congress. One of the guidelines is a mandate for transparency, in other words, that barring certain circumstances where it might be in our national interest to keep the information from public view, that the decisions and advice of OLC would be available for public scrutiny.
You can read the guidelines right here:
http://www.law.indiana.edu/ilj/volumes/v81/no4/11_Guidelines.pdf.
To read her own writing (not the link I've given) on the role of the Office of Legal Counsel is to want to get on your knees and weep with gratitude. Here's my blog on that, which links with her writing:
http://tpmcafe.talkingpointsmemo.com/talk/blogs/therap/2009/01/we-the-people-and-olc---why-et.php
Those are good places to start.
March 3, 2009 5:54 PM | Reply | Permalink
Thanks for the links - something is wrong with the first one though.
Citizens of this republic should get goose bumps, then nausea, when they read about what was done at the OLC.
So far everyone trying to justify how the OLC was used is disingenuous to say the least.
Willing tools ( Yoo et al ) were stuck in the OLC and told exactly what to write; the administration then used the output from OLC to give themselves permission to do whatever they wanted.
Some say the opinions from the OLC have the heft of Supreme Court decisions. Where did that idea come from ?
March 3, 2009 7:28 PM | Reply | Permalink
The link for the guidelines is in that blog of mine. So use the 2nd link I provided and then search for "guidelines" - in the blog. That link will work.
Sorry.
March 3, 2009 9:56 PM | Reply | Permalink
The OLC is sometimes called the 10th justice. That is because their role is to try and keep the president (and his or her administration) from straying beyond the law. Their job, as Dawn Johnsen puts it, is "to say no to the president" - to, in effect, act as a brake - just as if they were acting in the role of the judiciary - to protect the best interest of the law.
March 3, 2009 9:59 PM | Reply | Permalink
"We need to get to the bottom of what happened at O.L.C. and ensure it never happens again."
I'm certain of one thing... don't hold those guilty accountable and it WILL happen again. History has taught this time and again...
So folks, get ready for this to happen again because those involved will not be held accountable... at least by the mobsters (both Dems and Reps) in Washington... IMHO
(History also has examples of freedoms being taken away forever by not holding those accountable)
March 3, 2009 8:27 PM | Reply | Permalink
WOW, I was about to comment on the absence of even a hint of opposing position (opinions of dissent etc), when I had a quick look at the best-practices-memo of 2005
http://www.usdoj.gov/olc/best-practices-memo.pdf
Bradbury's overview SPECIFICALLY discourages the presentation of differing opinion here:
"OLC particularly should avoid giving unnecessary advice where it appears that policymakers are likely to move in a different direction"
Even though earlier he acknowledges the proud history and value of doing just that here:
"Over the years, OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers."
Doublespeak is one thing, but substantially contradicting yourself within two paragraphs?
Oy.
March 3, 2009 10:56 PM | Reply | Permalink
Old OLC (under bushco):
New OLC (Dawn Johnsen):
March 4, 2009 9:17 AM | Reply | Permalink