1 Boring Old Man

Abolish the White House Counsel
And the Office of Legal Counsel, too, while we’re at it.
Slate
By Bruce Ackerman
April 22, 2009

^{President Obama is right. Whatever we do about the sordid acts of torture during the Bush years, it is more important to prevent their recurrence in the future. Unfortunately, the president has yet to take his own words seriously. He seems to think it’s enough to appoint better people to the jobs in the White House and Department of Justice formerly held by Alberto Gonzales, Jay Bybee, and John Yoo. But this is a mistake. We need to rethink the entire institutional setup that made their abuses not just possible but predictable.}

^{The torture memos are symptoms of a deeper structural problems in both the White House and the Justice Department. These failures enabled John Yoo, David Addington, and others to rush to their decisions without exposing themselves to the ordinary checks and balances that constrain professional legal judgment. Without fundamental changes, the same politicizing dynamic may well repeat itself after the next terrorist attack…}

^{The Office of Legal Counsel in the Justice Department also has roots in the Roosevelt era. The proliferation of New Deal statutes created a crisis of legal interpretation in the executive branch, with different departments and agencies interpreting the same statutes in different ways. This cacophony required the Justice Department to play a coordinating role. It borrowed an assistant from the solicitor general’s office, and that assistant began issuing opinions to resolve legal conflicts. The current Office of Legal Counsel evolved from these humble beginnings and continues to show signs of its origins. For example, the OLC isn’t organized as if it were a court that must hear both sides of the argument before reaching its opinion on the merits. Instead, the assistant attorney general in charge of the OLC acts as if he were an advocate and issues opinions without the checks and balances provided by adversary argument.}

^{This one-sided culture helped create the excesses of Bush OLC lawyers Jay Bybee and John Yoo. Since they were the president’s lawyers, it was easy for them to suppose that they should fulfill their client’s demands. The challenge for Dawn Johnsen, Obama’s nominee to head the Office of Legal Counsel, is to transform her office into a truly judicial institution.}

^{It’s this function that served as the initial aspiration for the office during the 1940s, when it was called the "Executive Adjudications Division." Wonky, but "adjudications" gets at the idea of balance. But in the 1950s, President Eisenhower changed the name, thereby encouraging officials to think of themselves as the president’s lawyers, rather than as a quasi-independent, courtlike body charged with telling the president how he should discharge his constitutional obligation "to take care that the laws be faithfully executed."}

^{We should return to the earlier vision. President Obama should reverse Eisenhower’s executive order. He should transform the Office of Legal Counsel into a courtlike institution that will make every effort to interpret the law in an impartial fashion. Before reaching an opinion on the merits, this new tribunal should confront briefs and oral arguments that force it to consider soberly the hard questions. On important matters, the tribunal should sit in multimember panels. And panel members should feel free to write dissenting opinions if they believe that the majority has gone astray…}

The President’s Lawyers
Harpers
By Scott Horton
March 11, 2008

^{At the peak of the Civil Rights movement, when my first thoughts about civics were formed, the Department of Justice assumed a promethean role. Most of Washington was, of course, mired in partisan bickering. But the Justice Department seemed to stand for something noble and grand, for a unifying set of principles that the nation could agree upon. It stood for the rights of the downtrodden, even when this was not a popular thing, and particularly where it was not. The Justice Department stood for the Rule of Law. This is not to say that political gamesmanship was absent, for it can never be driven entirely from a political institution. Still, the Justice Department seemed to stand majestically above most of the fray. That was the period of its institutional apogee.}

^{Today, the Justice Department seems at the base of some dark crevasse, and when beams of light flow into it, what we see always causes a shudder. Far from being the gatekeeper of the nation’s legality and the custodian of its ethics, the Justice Department has emerged as the single most corrupt institution on the Washington landscape…}

^{For the better part of a year, one attorney general and his deputies appeared before Congressional committees and had streaming lapses of recollection. The memory failures always had to do with political manipulations using the justice system. And when they were able to recall facts, their recollections turned out to be false on critical points. Public outrage forced the departure of the entire senior leadership of the department. And then a new team began to arrive…}

^{These lawyers have no fidelity to law. They are an army of termites working away at the infrastructure of our democracy. And the first institution they will yet bring to complete destruction is the Department of Justice. The gravity of this betrayal cannot be overstated. And if there are two cesspools inside the Justice Department today, two centers of legal depravity, then they are the Office of Legal Counsel and the Public Integrity Section in the Criminal Division. Both operate to the same crude principle of politics trumps right. Both are working indefatigably to destroy the public’s confidence in the Department of Justice.}

^{Today, the editors of the Washington Post chart the moral collapse of the Office of Legal Counsel:}

^{Since its creation in the early 20th century, the Justice Department’s Office of Legal Counsel has been considered the legal conscience of the executive branch, rendering judgments to presidents and executive agencies about what the law allows. The OLC responds to executive branch requests for clarifications on everything from how to determine annual leave for federal employees to whether treaty provisions are constitutional and how torture should be defined. Its opinions are binding on the executive and essentially carry the weight of law. Past OLC opinions continue to have force when a new administration begins, just as Supreme Court decisions enjoy the force of law long after the justices who made them have left the bench.}
^{Unfortunately, during the Bush Administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture. The OLC’s decisions have eroded the legitimacy of the office and given legal cover to behavior that most Americans — and most lawyers — regard as improper.}

^{The Post notes that the Office of Professional Responsibility (OPR) is looking into the ethics of the OLC and its memo writing. I have now examined a series of cases which have been reviewed by OPR. My review leaves me convinced that OPR is an emasculated, politically immobilized organization. It’s stunning that notwithstanding a firestorm that erupted over OLC and its torture memoranda four years ago, notwithstanding the fact that they were ridiculed and condemned by the organized bar in the United States and around the world, no action was ever taken. OPR’s inaction speaks volumes about its lack of motivation…}

^{The Post is correct about the role of the OLC. It has become an enabler for corrupt, dishonest and criminal policies. Its opinions shield gross misconduct. It has become, as Jack Goldsmith suggested, a mill generating “get out of jail free” passes to the Bush Administration’s political hack retainers. OLC is dragging the Justice Department into depths it has never known before. And its descent has not yet even begun to slow.}