a citizen’s journal by Thomas Nephew

The 0.2 percent snag and the OLC

Posted by Thomas Nephew on December 10th, 2008

The Legal Times’s Joe Palazzolo reports that Obama’s Department of Justice transition team has run into a little not unexpected difficulty:

A senior Justice Department official said today that “99.8 percent” of the department’s work with President-elect Barack Obama’s transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team’s request to review classified legal opinions related to secret CIA and National Security Agency programs.  […]

The opinions, some of which have been released to Congress in redacted form, contain the legal rationale of the NSA’s warrantless spying program and the CIA’s detention and interrogation policies, among other intelligence initiatives.

A reasonable guess about some of the documents involved can be gleaned from an October 2007 list of documents OLC chief Steven Bradbury refused to release in in response to an ACLU/EPIC lawsuit , summarized by ’emptywheel’ in “Warrantless Wiretap Memos Timeline.”*  Palazzolo continues:

In an unprecedented move, the Justice Department began providing provisional security clearances to Obama’s staff prior to the election. A select group was cleared for access to even more sensitive information, but [Attorney General] Mukasey said last week that some documents may not be made available to Obama’s staff until they take their oath of office.  […]

The Justice official said the dispute over access to the NSA and CIA opinions has made its way up to Williams & Connolly’s Gregory Craig, who earlier this month was named to be Obama’s White House counsel. Craig was expected to meet with current White House counsel Fred Fielding to discuss the issue, the official said. It’s unclear whether such a meeting has already taken place.

Given the past eight years, it’s hard not to be suspicious that the “99.8%” cooperation is the easy stuff, for public relations.  Meanwhile, that “0.2% snag” — stuff Obama’s transition team will have to wait until January 21st for — might also be relabeled “stuff Bush will pardon people for on January 20th.”  Still, it’s interesting and heartening to learn just who is on that transition team:

Obama’s Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr’s David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.

First off, it’s great to see that Marty Lederman is part of the team.  Lederman has done concerned citizens everywhere a tremendous service by translating the arcana of the the torture and surveillance debates into understandable form at the indispensable “Balkinization” blog.  It’s also good to note that the Johnsen, Lederman, and Schroeder are co-signers of the “Principles to Guide the Office of Legal Counsel,” (“Guidelines”) developed and signed by nineteen OLC lawyers in all in outraged response to the notorious “Torture Memo.”  The first principle clearly calls Yoo, Addington, and others in the Bush administration on the carpet:

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

Another related and welcome sign is that Ms. Johnsen and Mr. Lederman, at least, share a commitment to transparency in executive branch legal decisionmaking: no secret laws or edicts. Ms. Johnsen testified at a “Secret Law and the Threat to Democratic and Accountable Government” Senate Judiciary subcommittee hearing in April, 2008 chaired by Senator Feingold (D-WI), and stressed,

OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public–particularly when advising the executive branch that in essence it could act contrary to federal statutory constraints […]

Congress should respect the President’s genuine needs for secrecy. But so, too, should the President [should] respect Congress’s need to know how–even whetherthe executive branch is enforcing existing law. It is fundamental that if OLC advises the executive branch that it may disregard an applicable legal restriction whether in the Constitution, a treaty or a statute-because a presidential prerogative trumps the law, OLC virtually always should make that legal interpretation public.

In other words, if you’re going to get “chalk on your cleats” by nearly going out of bounds with your legal opinions, you need to do that “under the lights” so oversight, checks, and balances actually have a chance to work right away, when it matters most.

So far, so very good.  The “Guidelines” were a welcome vision of a more ethical OLC that respects the whole Constitution, not just its Article II describing the executive branch.  It would be a great thing if “Guideline” authors like Lederman, Johnsen, or Schroeder** were to return to the OLC or other high-level Department of Justice positions.

Still, the second paragraph above hints at the fairly large “national security” loophole Ms. Johnsen often noted in passing in her testimony, and that she and her OLC colleagues left themselves at various places in the “Guidelines.”  The huge “national security” exception that so often stifles national discourse, hobbles congressional oversight, and denies plaintiffs against government overreach their full day in court, remains in full force and unexamined — and this can not be surprising, since at the end of the day even ex-OLC lawyers are not going to undermine one of the principal pillars of executive branch power.

They may also not be the very most neutral participants in the debate about how bad faith, criminal, “here’s how to get away with it” advocacy of war crimes should be penalized.***  While I remain a great admirer of Marty Lederman, he has essentially argued  — at least until now — that Yoo, Addington, and others should not be in legal jeopardy for proposing legal stratagems and drafting legal memoranda defending and authorizing acts of torture — that is, war crimes.  Lederman is of course far more qualified than I to understand the nuances of the statutory and constitutional issues involved, and to evaluate what the available evidence supports.  But his arguments on this score have seemed self-contradicting to me.

The OLC “Guidelines” document is long, well spoken, well annotated — but it may be futile in and of itself.  To be sure, if it and its signers set an excellent good example, and if its principles are followed uncontroversially for the next four or eight years, the record and effects of Yoo’s, Bybee’s, and arguably Bradford’s abuses may recede into unpleasant memory where they belong.

But without penalties, they will not stay there.  The past eight years have taught us that there is a very strong “legal party” — roughly, the Federalist Society — committed to a view of the Constitution and the presidency that has proven antithetical to democracy as most of us, I think, have understood it.  These people will be ready, at a moment’s notice, to repopulate the halls of the Justice Department, the OLC, and the court system, and continue the work that has brought us to our present pass: discussing torture on the evening new hours in between stories on bank mergers and steroid use by athletes.  Without a crystal clear example or three, we will not have their undivided attention when we say “here’s a bright line; cross it at your peril.”

The Office of Legal Counsel can not be expected to provide thinking along those lines; nor can the Justice Department; nor can the White House.  No matter how virtuous the occupants of these institutions, their offices and the Constitution will keep them from devising suitable deterrents to abuses by future occupants.  We must look elsewhere for that — preferably to ourselves and to a revitalized Congress.  To say that is to realize how very far we still have to go.

* A separate ’emptywheel’ post marshals arguments (and counterarguments) that an October 23, 2001 Office of Legal Counsel (OLC) opinion (OLC 146) — written by John Yoo, of course — may be the one providing the original cover for the NSA’s warrantless surveillance.
**Or — presuming virtue by association — Mr. Ogden; I know nothing about him, though.
*** Re “bad faith,” this is both documented and, I think, legally relevant; see “Practice to Deceive.”
UPDATE, 1/5/09: Dawn Johnsen to head OLC (
Obama Fills top Justice Department Spots‘, Eric Lichtblau, New York Times Politics Blog): “Dawn Johnsen …did not try to hide her skeptical views on recent counter-terrorism policies in a law review article last year entitled: “What’s a President to Do: Interpreting the Constitution in the Wake of the Bush Administration’s Abuses.” A professor at Indiana University law school, she served on an acting basis as head of the office of legal counsel in 1997 and 1998 in the Clinton administration.”

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