a citizen’s journal by Thomas Nephew

DOJ to Senate: oversight helps the terrorists

Posted by Thomas Nephew on January 5th, 2007

Senator Patrick Leahy, the incoming chairman of the Judiciary Committee, has been trying for years to get information from the Bush administration about how it sees itself complying with federal laws and treaty obligations concerning the human rights of its detainees. Among Leahy’s specific requests (emphases added):

  1. Please produce any and all directives, memoranda, and/or orders, including any and all attachments to such documents, regarding CIA interrogation methods or policies for the treatment of detainees, including but not limited to the directive signed by President Bush governing CIA interrogation methods, or allowing the CIA to set up detention centers located outside of the United States.
  2. Please produce any and all Department of Justice directives, memoranda, and/or guidance, including any and all attachments to such documents, regarding CIA detention and/or interrogation methods, including but not limited to the August 2002 Memorandum from the Department of Justice‚Äôs Office of Legal Counsel to the CIA General Counsel regarding CIA interrogation methods (the “2nd Bybee memo”).

In a reply dated December 22, 2006, the Department of Justice denied those and similar requests (emphases added):

Your letter seeks documents and information concerning the extremely sensitive operational details about the CIA program, including the specific interrogation techniques employed in the CIA program. The Department of Justice is not in a position to disclose such documents and information. [...]

In his address to the Nation, the President acknowledged the existence of the CIA program, but there are many details about the program that he did not, and could not, share publicly. One example is the specifice interrogation techniques that were authorized for use on these high-value terrorists. As the President explained, to disclose that sensitive operational information would be to “help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. … Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them. We must avoid assisting their effort. [...]

In addition, your letter seeks legal advice of the Department’s Office of Legal Counsel (“OLC”) concerning the CIA program. As the President explained to the Nation on September 6th, the Department of Justice “has reviewed the authorized methods [of the CIA interrogation program] extensively and determined them to be lawful. [...] OLC opinions, as a general matter, consist of confidential legal advice, analysis, conclusions, and recommendations for the consideration of senior Administration decisionmakers. If such OLC opinions were subject to disclosure, the candor of that legal advice would inevitably suffer and separately, Executive Branch officials would be less likely to seek it. It is crucial to informed Executive Branch decisionmaking, and promoting compliance with all applicable legal requirements, that the confidentiality of this advice be preserved.

Via Marty Lederman (“Balkinization”) who writes (emphasis in original):

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch’s views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

Lederman has worked for the OLC, and acknowledges there’s a debate with people he respects there about the potential “chilling effects of sunshine,” to coin a phrase, on OLC legal advice. Here, I disagree with him: it’s a fallacy to even begin that debate. The point of the Constitution and of the U.S. government is not to provide a hermetically sealed legal affairs office environment for the executive branch to ponder its business. It is to give confidence to the people of the United States that their will is being done, and that they and their rights are being protected.

That can’t happen if arguments like the above by the Justice Department win out. A United States Senator has made a legitimate inquiry into the highly questionable activities and legal advice within the executive branch. It will not do to say he’s on the wrong committee, it will not do to say that future advice will be less candid.* And it will not do at all to say “the President has explained” that informing a United States Senator of executive branch actions can not be allowed because it will help the enemy, or that the CIA methods were “determined… to be lawful” – by people he can hire and fire at will.

I think that far from helping terrorists, oversight like Leahy wants to conduct could help this country regain its bearings. Viewed properly, the rule of law, respect for human rights, and a system of checks and balances are assets, not liabilities, in fighting terrorism; they gain us allies instead of enemies. It’s time to give our own core values a chance again.

*Taking the question of candid advice by itself, for a moment, it seems to me the question used to taunt civil liberties advocates is finally a fair one: if what the Bush administration is doing is legal, what do they have to worry about? We’re not talking about the rights of an individual here, but about the obligation of one branch of government to accept oversight by another.

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