John Dean: Beyond the Pale: The Newly-Released, Indefensible Office of Legal Counsel Terror Memos

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Beyond the Pale: The Newly-Released, Indefensible Office of Legal Counsel Terror Memos
by John W. Dean | March 13, 2009 - 9:07am Share


— from FindLaw


On March 1, the Obama Department of Justice released nine memos written in the aftermath of 9/11 by the Office of Legal Counsel (OLC). Seven of these documents, written between 2001 and early 2003, outlined the authority of the president to fight terror, but they gave a misleading picture of that authority as virtually unlimited by ignoring treaties, statutes, and even the Constitution itself. (Others have summarized the content of these documents.) These documents are extraordinary, as were the previously-released OLC legal opinions justifying torture.

Even the Bush Administration, at its very end, finally retreated from the seven memos' conclusions. Memos dated October 6, 2008 and January 15, 2009, issued by the acting head of OLC, Steven Bradbury, in effect repeal, reject and repudiate the conclusions of the seven prior memos. The question for historians now is how the memos came about, and the issue for policymakers is how to avoid similar disgraces in the future.

The Once Highly-Respected OLC's Damaged Reputation

At the outset, it should be noted that there is no reason to impute evil motives to the Bush attorneys involved in writing these legal opinions. Bradbury states in his memorandum for the files nullifying the seven opinions that when the opinions were prepared, policymakers "fear{ed} additional catastrophic attacks were imminent," so they sought "to employ all lawful means to protect the Nation." No doubt, they were scared as hell, but to call these "lawful means" – as Bradbury states – is questionable. After all, Bradbury himself is repudiating these opinions precisely because, in many instances, they clearly employ unlawful approaches. In addition, it is remarkable that long after the imminent fear had subsided, these legal opinions still remained applicable, and were not revoked.

These newly-released opinions have badly damaged the reputation of OLC, which had always been the least political operation within the Department of Justice. This small, elite office, staffed by the best and brightest attorneys, once prided itself as an office that followed the law, and so advised the president, regardless of what the White House wanted to hear. From personal experience, I know that during the Nixon years – with a president not known to be shy about wishing to exercise his powers to the fullest – OLC was a consistent restraining influence, regarding both foreign and domestic legal matters.

One example will suffice: Nixon wanted a clear signal from OLC that he could – and ideally should – criminally prosecute the New York Times for publishing classified information associated with the Pentagon Papers. Then-OLC head William Rehnquist (no shrinking violent either regarding presidential powers), in essence, advised against it.

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