Editore"s Note
Tilting at Windmills

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January 21, 2009

AN OLC WE CAN BELIEVE IN.... About two weeks ago, former Vice President Dick Cheney appeared on "Face the Nation," and defended the Bush administration's legal abuses, saying they'd been endorsed by his lawyers.

"In terms of all of our actions," Cheney said, "we worked to stay close to the Office of Legal Counsel. We followed the guidance we got, which is what you're supposed to do and where you're supposed to do it."

In other words, Cheney got John Yoo to endorse actions that exceeded the law, so it's all kosher. After all, the OLC is where "you're supposed" to get this kind of authority.

It's encouraging, then, to know who'll be sitting in John Yoo's office for the foreseeable future.

A Georgetown source forwards over an email from that school's administration, reporting that Professor Marty Lederman's class will be canceled -- because he's joining the Obama administration.

Lederman, another former Clinton Office of Legal Counsel lawyer, is perhaps the most prominent of several high-profile opponents of the Bush Administration's executive power claims joining Obama, a mark that he intends not just to change but to aggressively reverse Bush's moves on subjects like torture. With hires like Barron, Johnen, and Lederman, Obama is not just going back to Democratic lawyers: These are anti-Bush lawyers.

Damn straight. Lederman has been a leading opponent of Bush's torture policies, and the legal reasoning behind them. He's even suggested that the former administration officials committed crimes in this area. Now, thankfully, Lederman is headed to the OLC.

And what an OLC it will be. The Lederman announcement came shortly after David Barron was named Principal Deputy Assistant Attorney General in the OLC. Barron has been a staunch opponent of Bush's executive-branch power-grabs and war-time legal arguments.

Both Barron and Lederman will, of course, join Dawn Johnsen, who'll head the OLC, and whose record on these issues is sterling.

A lot of this may seem obscure. Before 2001, OLC was not widely known, and rarely thought about in a political context. But as Hilzoy recently explained, "It tells, for instance, the CIA and the Department of Interior what it judges to be permissible under the laws, and its opinions are binding. Under George W. Bush, the OLC seems to have been used to provide Get Out Of Jail Free cards -- opinions that would license whatever Bush and Cheney wanted to do, and provide some cover for people who did those things. That the OLC has that kind of power makes it a very, very important job."

That Obama has chosen terrific people to fix the OLC is a very encouraging development.

Steve Benen 8:40 AM Permalink | Trackbacks | Comments (26)

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Comments

First things first. Arrest Bush and Cheney and the rest.

Treason, for outing a CIA Agent, for starters, and then move quickly to the meat and potatoes: " War Crimes: Torture and mass civilian killings beginning with the horrific display of "Shock and Awe" (nauseating) that obliterated untold numbers of Iraqi civilians.

Then, for the hell of it, throw in the illegal wire tapping and the host of democrat senators who colluded. Get good lawyers Rockefeller, Fienstein, Pelosi, Ried)

Justice for all.

Posted by: stevio on January 21, 2009 at 8:52 AM | PERMALINK

"former administration officials"

What a great sound those words make! I have to say them over and over!

Posted by: Daniel Kim on January 21, 2009 at 8:56 AM | PERMALINK

It tells, for instance, the CIA and the Department of Interior what it judges to be permissible under the laws, and its opinions are binding - Hilzoy

I find this to be the most frightening part of the whole OLC process. It essentially makes a group of political appointees the Supreme Court of the Executive Branch. Bush exacerbated it by refusing to make public these rulings, thus depriving Congress the right to check Executive power.

While it's nice that Obama intends to share OLC opinions, it doesn't solve the problem that the President gets to decide when or whether he wants to operate according to secret rules. It would be interesting to know what the SCOTUS would have to say on the subject, because I can't imagine an ammendment to the constitution on something this esoteric.

Posted by: Danp on January 21, 2009 at 9:02 AM | PERMALINK

Leave the prosecutions to the DoJ! I'm just glad the WH will return to the jurisprudence of our land instead of just making shit up to cover asses!

Sorry about being so over the top, but it is what the Bush Administration did to us - over the top into illegal anti-democratic anti-middle class American chicanery that has damaged us greatly.

Now, as so many have said of late, we must follow the law back into the sinews of Bush/Cheney deeds and prosecute the crimes if in deed some have been committed! -Kevo

Posted by: kevo on January 21, 2009 at 9:04 AM | PERMALINK

At the risk of a Goodwin's Law violation, the idea that a lawyer can immunize an official from illegal behavior is absurd.

It just defies common sense that a lawyer signing-off on a new definition of torture that excludes what was previously in the definition of torture doesn't work to avoid U.S. and int'l laws against torture.

WTF? What if Saddam Hussein invoked this defense at his trial? "I had a lawyer sign-off on my decisions as not violating the law." Would Dick Cheney have accepted this defense?

Posted by: Carl Nyberg on January 21, 2009 at 9:07 AM | PERMALINK

You'd have to think a con law professor like Obama was going to take these posts seriously. Nice to see he did.

In other news, I'm glad to see that the Republic survived the incredibly important invocation given by Rick Warren yesterday. I'm so so so glad we spent so much time discussing that a few weeks ago. Clearly worth it.

Posted by: TR on January 21, 2009 at 9:24 AM | PERMALINK

Is this only a democracy governed by law when the administration chooses to let it be? Between the OLC and signing statements what chance does rule of law have? Leave it to the Neocons to extensively abuse obscure offices and methodologies to do whatever they want.

This is enough to make a person a gun nut. Can we assume then that the only reason that Bush is not our Holy Christian Emperor is that he knows that we would not physically allow it?

Posted by: Michael7843853 on January 21, 2009 at 9:31 AM | PERMALINK

Gosh, it seems like only yesterday that Obama went along with the FISA bill and we were told, Oh well, that's it, he's just going to be another right-leaning abuser of power because he really doesn't have progressive leanings at all and he's just another New Democrat who wants to curry favor with the Village.

Remember that?

Posted by: Steve M. on January 21, 2009 at 9:47 AM | PERMALINK

Why this is important.
Of course the prosecutions must be left to the DOJ, a Special Prosecutor, but the OLC will be those that must advise the Pres. that he is legally bound to direct the DOJ to act. They will then also be the ones advising him on the pardons the Right will clamor for.

Posted by: OneCrankyDem on January 21, 2009 at 10:09 AM | PERMALINK

"WTF? What if Saddam Hussein invoked this defense at his trial? "I had a lawyer sign-off on my decisions as not violating the law."

Taken one step further:

Judge: Why did you shoot that man?
Defendant: My lawyer said I could.
Judge: Not guilty. Next!

Posted by: Marko on January 21, 2009 at 10:18 AM | PERMALINK

To those who are upset by the very existence of OLC: I think you're taking understandable outrage one step too far. OLC exists because the President has a constitutional duty to take care that the laws be faithfully executed. When it's functioning correctly, OLC helps the President fulfill that role. It's different from the Office of White House Counsel, which plays more of the role of an advocate for the President. OLC is supposed to be the objective legal adviser to the Executive Branch. Its opinions are binding (in a limited way) because that helps ensure consistent execution of the laws, even on legal issues that would never come before a court. And OLC opinions are not all secret: lots of them are available online.

The bathwater is that dirty wet stuff. The baby is that little wiggly thing.

Posted by: The Fabulous Mr. Toad on January 21, 2009 at 10:22 AM | PERMALINK

"But as Hilzoy recently explained, "It tells, for instance, the CIA and the Department of Interior what it judges to be permissible under the laws, and its opinions are binding."

And as I pointed out to Hilzoy in that very same posting "Who elected the OLC to tell the President anything? And by what authority would its opinions being binding on him?" No one had any answer and I don't expect one here either.

Posted by: Chicounsel on January 21, 2009 at 10:33 AM | PERMALINK

To those who are upset by the very existence of OLC... - Mr. Toad

I couldn't find any comments that suggested that the OLC is inherently bad. The problem is that the executive branch can use the OLC to create secret law. The Bush administration did it with torture and warrantless wiretaps. I suspect they did it with black bag jobs as well, since when asked specifically about this, Gonzales merely said he couldn't comment. I'd be curious whether you think the OLC has a legal obligation to funtion correctly, and if so who has oversight.

Posted by: Danp on January 21, 2009 at 10:38 AM | PERMALINK

Chicounsel wrote (always nice to see the dishonest conservatives undaunted by their Party's collapse!): And as I pointed out to Hilzoy in that very same posting "Who elected the OLC to tell the President anything?

Yeah, and who elected the Secretary of State to negotiate treaties on behalf of the US, or the head of the EPA to craft environmentla regulation?

It's a delegated power, jackass. Its function is analogous to a corporate legal department -- which means that yes, as we saw with Yoo's sordid episode, that a corrupt and incompetent President can assign a toady to tell him what he wants to hear, regardless of its actual legality.

At best, the President could try a defense that he acted in good faith on the advice of counsel. Fortunately, enough is known about Bush that no one will believe good faith except dead-enders like Chicounsel, for whom bad faith is like a religion.

Jackass.

Posted by: Gregory on January 21, 2009 at 11:02 AM | PERMALINK

"I'd be curious whether you think the OLC has a legal obligation to funtion correctly, and if so who has oversight." - Danp

My sentiments, exactly.

Posted by: Marko on January 21, 2009 at 11:24 AM | PERMALINK

Danp and Marko,

I'm not sure what you mean by a legal obligation to function correctly. My understanding is that OLC exercises authority delegated by the Attorney General, who has a statutory duty to advise the President. There's an Assistant AG for the OLC, but the AG has ultimate oversight. The President has a constitutional duty to take care that the laws be faithfully executed, and OLC's advice to the President -- like all executive policy -- should be informed by that constitutional responsibility. But if you mean, could someone take OLC to court for giving the President certain advice, I think that would present some pretty serious separation-of-powers issues, and there are some cases where executive officers of the government have been found to be immune from suit for that reason.

Posted by: The Fabulous Mr. Toad on January 21, 2009 at 11:50 AM | PERMALINK

First things first. Arrest Bush and Cheney and the rest. -- stevio, @ 8:52

First things first. Weave a net to catch them with and build a pen to hold them in. It seems to me that Obama is doing just that -- weaving a net, stitch by stitch and building a jail, brick by brick -- with every appointment.

And, if he's doing it quietly and steadily, without slap-dash hurry and without fanfare... All the better.

Posted by: exlibra on January 21, 2009 at 11:54 AM | PERMALINK

At the risk of a Goodwin's Law violation, the idea that a lawyer can immunize an official from illegal behavior is absurd.

Absurd and, more the point, already addressed in the Alstoetter et. al. or so-called "Justice Cases" at Nurember. US prosecutors tried and convicted German Reichsministerium (the Department of Justice equivalent) lawyers who had written memos authoring war crimes committed by Nazi officials. See in particular Paragraph 13 of the Indictment, which alleged that the lawyers were criminally liable for their part in the infamous Nacht und Nebel decrees, decrees which the lawyers should have known had “no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations”:

The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler’s decree of “Night and Fog” whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims’ whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims’ relatives and barring recourse to any evidence, witnesses, or counsel for the defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for “protective custody” for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned.

Posted by: Stefan on January 21, 2009 at 12:26 PM | PERMALINK

The Fabulous Mr. Toad -

"Function correctly" was a term you used in your earlier comment. I would assume that we both agree that issuing questionable opinions secretly for the purpose of giving cover to controversial policies is not "functioning correctly". Since the AG is also appointed by the President, it doesn't really provide an equitable system of checks and balances. The Congress has the right to impeach the Pres (or AG, I believe), and certainly the right to challenge an executive policy. The SCOTUS has the power to find a policy illegal, regardless of OLC advice. The problem is that no one outside the exec branch seems to have the absolute right to know what the policy is or what advice is being used to mandate the policy.

So if the President gets the OLC opinion that waterboarding is OK, and orders the CIA to waterboard a prisoner, the CIA, as I understand it would be bound by the OLC opinion, and therefore be required to accept the order. At this point the Exec branch can continue to waterboard until someone learns about it and challenges it. The fact that the OLC sometimes posts its opinions, does not solve the problem.

In the case of the Bush administration, I would add this anecdote. Jay Bybee, who I believe was a professor at BYU at the time, was asked for, and gave a torture-friendly legal opinion, and was promptly appointed to a judgeship. Congress had to confirm his appointment, but had no way of knowing he had recently given this opinion. Was the appointment a reward? The answer is probably not as simple as Blagojevich's pay-for-play allegations, but I would argue it is certainly problematic.

By the way, wiggly thinks are creepy. :)


Posted by: Danp on January 21, 2009 at 12:52 PM | PERMALINK

As a conservative who voted for Obama, and who reads this blog, wanted to point out something. Seeing Cheney in a wheelchair yesterday, did it remind anyone of Dr. Strangelove in some odd way?

Posted by: jeff on January 21, 2009 at 1:02 PM | PERMALINK

And can we get laws changed so a future fascist doesn't just appoint rubber stamp men again?

How is this non-check and balance allowed to bypass review by seasoned judiciary officials with no fear of dismissal when they decide against the president's wishes?

How was this hangar door size loophole not closed eons ago? Is it even a loophole or was the Democratic congress merely inept at enforcing law and bringing a renegade president to heel?

(Or did the Democratic congress give them enough rope to hang themselves with even at the expense of serious civil rights violations for which they should be dismissed. A Democratic majority is not an end that justifies the means of shirking their responsibilities of defending the Constitution against all enemies domestic.)


Posted by: toowearyforoutrage on January 21, 2009 at 1:33 PM | PERMALINK

So if the President gets the OLC opinion that waterboarding is OK, and orders the CIA to waterboard a prisoner, the CIA, as I understand it would be bound by the OLC opinion, and therefore be required to accept the order. At this point the Exec branch can continue to waterboard until someone learns about it and challenges it.

No, this is false. One is never bound to accept an illegal order -- indeed, one has a duty to oppose it -- and an opinion that it is OK to torture a prisoner has no more legal weight than one saying it would be OK to, for example, rape him, or burn him alive. The OLC cannot suddenly issue opinions that willy-nilly contradict plainly understood and settled law and if they do, no one is required to go along with the charade.

Posted by: Stefan on January 21, 2009 at 2:07 PM | PERMALINK

"The OLC cannot suddenly issue opinions that willy-nilly contradict plainly understood and settled law..."

And what if they do? (actually, I believe they did in the torture case)

What if they willy-nilly contradict not-so-plainly understood law? This gets to be a slippery slope.

Posted by: Marko on January 21, 2009 at 2:22 PM | PERMALINK

One is never bound to accept an illegal order - Stefan

OK, but now we're right back to the Hilzoy quote that started this discussion: It tells, for instance, the CIA and the Department of Interior what it judges to be permissible under the laws, and its opinions are binding

And while I understand the Nurenburg trials argument, I hope you can also see that not accepting the OLC opinion means you have to quit your job, or try to get whistleblower status, which the Bush administration also made virtually impossible. I would further argue that it will be virtually impossible to convict people who relied on OLC opinions, and it will be almost as unlikely that any OLC lawyers will ever be convicted of giving bad advice.

Posted by: Danp on January 21, 2009 at 2:51 PM | PERMALINK

Agreed with Danp@2:51

Posted by: Marko on January 21, 2009 at 3:48 PM | PERMALINK

First, let's have due process. Congress can establish a non-partisan commission with subpoena power, then turn over findings to the AG. From there Constitutional and foreign policy legal experts can determine who committed crimes and whom to prosecute. We are no better off just saying 'try 'em and fry 'em' without the due process that the Bush administration denied to others. This president knows the law. Let him use it WELL.

Posted by: Elizabeth Sholes on January 21, 2009 at 5:25 PM | PERMALINK




 

 

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