The Office of Legal Counsel [OLC] in the Department of Justice [DoJ] exists to render legal opinions for the Executive Branch:
The Attorney General has directed the Office of Legal Counsel to publish selected opinions for the convenience of the executive, legislative, and judicial branches of the government, and of the professional bar and the general public. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of executive departments…The web site includes Office of Legal Counsel opinions that the Department of Justice has determined are appropriate for publication.
We know about the OLC because of the controversial memoranda during the Bush Presidency, particularly those written by Deputy Assistant Attorney General John Yoo. Here’s a compilation of the OLC Opinions in 2001 through 2003, the period of John Yoo’s tenure there. The OLC doesnt publish all of its Opinions, so there’s no way I know to present a comprehensive picture. The lower graph is a summary of their published Opinions. Those written by John Yoo are in the darker red. Opinions that have to do with the President’s war powers or related matters not written by Yoo are in the lighter red. All other opinions are light green. The middle graph documents those Opinions obtained by Freedom of Information requests. And the top graph are Opinions known to exist that are still secret.
John Yoo was a Specialist: All of the Opinions known to be assigned to him had to do with some aspect of the War on Terror except the first one, written before 9/11. That Opinion was, however, about Presidential powers. He wrote 65% of the known OLC Opinions that had to do with aspects of the War on Terror during his time at the DoJ.
John Yoo was a "yes man": All of his Opinions said "yes" to whatever he was asked. And rather than sticking to just the legal points, he often lapsed into creating arguments – more like an advisor defense lawyer than a source of legal opinions. I can’t find the date of Yoo’s arrival at the DoJ. I was interested in how he came to be there since he is such a rigidly ideological Federalist Society type. And I’m not precisely sure when he left. His last opinion was in March 2003. It is reported that he left because John Ashcroft blocked his appointment as head of the Department. Yoo’s boss, Jay Bybee, was appointed to a Federal Judgeship [literally on the day the invasion of Iraq began]. Bybee was replaced by Jack Goldsmith on October 3, 2003.
- John Yoo’s Opinions were transient: Many of John Yoo’s Opinions have been repudiated and withdrawn by subsequent OLC heads. I haven’t compiled that for this post because there’s another factor. It seems that some of the Opinions listed above as authored by others were written by John Yoo [That data will have to wait until I don’t have other fish to fry].
But even with an incomplete quantitative compilation, there is obvious question that needs to be answered. How are these OLC cases assigned? All of those light green cases that have nothing to do with the War on Terror went to other Assistant Attorney Generals, not to John Yoo. Do the people asking the questions get to pick their advisor? It makes Yoo look like a "plant," someone hired on to crank out confirming Opinions to cover the Bush Administration officials involved in rendition, torture, Gitmo, N.S.A. Spying, Presidential Power, etc. When the OLC received a request, who picked the lawyer to look into it? Clearly, the ones that had to do with the Bush secret programs went straight to Yoo. Is that even legal? More to come…
According to an article in salon.com dated April 2, 2008 written by Glenn Greenwald titled John Yoo’s war crimes, it is not the job of the Justice Dept. to write the laws but to enforce the laws. According to the article Yoo was working directly under Gonzales and Addington. According to wikipedia Yoo law clerked for Laurence Silberman who was co-chair of the Iraq Intelligence Commission and later he received the Presidential Medal of Freedom from George W Bush and for Clarence Thomas. Yoo is married to the daughter of reporter Pulitzer Prize winning Peter Arnett of the first Gulf War.