Convictions: Slate's blog on legal issues

Executive (Over)Privileged -- Must the Abuse Continue?

Today on Findlaw, I explore the problematic misuse of executive privilege in the Bush administration.

That misuse continued late last week when former White House Chief of Staff Karl Rove refuse to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon US attorneys in the prosecution of a former Democratic governor of Arkansas.  The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys.  In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president's internal communications.  The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt.

Late last month, in a related inquiry being litigated in the District Court in Washington, D.C., Judge John D. Bates heard vigorous argument from the Bush White House in defense of its refusal to supply documents to Congress or to allow the Congressional testimony of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten regarding the controversial dismissal of a series of U.S. Attorneys.   Here too, Congress is investigating based on suspicion that the dismissals were politically-motivated; and, as in the case of Mr. Rove, the Bush Administration has blocked its inquiry by asserting executive privilege.

It is smugly assumed by the Bush administration that the awkwardness and difficulty of resolving an inter-branch dispute over executive privilege will mean that the case will linger past the national election and next January when the matter can be declared moot.   The rule of law deserves better.

Judge Bates who has charge of the Miers/Bolten matter should put the burden on The White House to establish -- as a matter of original understanding -- the constitutional basis for the privilege beyond national security and the protection from outside interference of an on-going federal prosecution.  The historical compilation of privilege claims was undertaken some years ago in the Office of Legal Counsel by the venerable Herman Marcuse whose service in OLC goes clear back to Humphrey's Executor if not before.  Marcuse found what Archibald Cox found:

"Over a period of a century and a half thirteen Presidents found a total of twenty occasions on which to refuse to turn over information demanded by an arm of Congress. . . .If  one looks at what was done and confines the words to the events, nothing appears which even approaches a solid historical practice of recognizing claims of executive privilege based upon an undifferentiated need for preserving the secrecy of internal communications within the Executive Branch."

Allowing Rove, Miers and Bolten to stiff arm Congress in the present matter where the heart of the inquiry is prosecutorial abuse, itself, stands the purpose of the privilege on its head.  

If the court turns away the Administration's overly-broad claim of executive privilege here, it jeopardizes no national security interest or ongoing investigation. The question presented is simply whether existing laws are adequate to avert the apparent or actual politicization of major charging and subsidiary prosecutorial judgments by the mid-term dismissals of U.S. Attorneys  and to ensure going forward that the dismissal of presidential appointees is not fobbed off on unaccountable staff assistants.  In the present matter, neither the President nor the then-Attorney General claimed to have supervised the dismissals closely or at all. Perhaps the administration wishes to argue that is "merely" near-impeachable maladministration, but alternatively, it could well be a systemic failure of the law.  Either way, the Congress has a fully legitimate legislative interest.

Finally, even  if  Judge  Bates  is  reluctant to re-examine the scope of executive  privilege, there is a simple and well-established principle that should foreclose a successful privilege claim: the dismissals represent past, not ongoing, decision-making.  The late Attorney General William French Smith reflected that legislative  oversight  "can  almost  always  be  properly conducted  with  reference  to  information  concerning decisions which the Executive Branch has already reached."

Indeed, the historic defender of the presidential  office,  the  Office  of  Legal  Counsel, has written that "[t]he courts  have  held  that the ‘deliberative process' privilege does not protect documents which reflect final opinions, statements of reasons supplying the bases  for  decisions,  or  policies  actually  adopted,  or documents that otherwise constitute the 'working law' of the agency."

For these reasons, the subpoenas for Rove's, Miers's and Bolten's testimony, as well as for relevant documents, should be enforced.  Better yet, the President should take the high ground and send his one-time aides to the Hill with their relevant papers without compulsory process.  Doing so would affirm that cooperating with legislative objectives can be, in the American Republic, another way to defend and enhance the body politic's respect for the office of the Presidency.

And on an unrelated -- but grateful (yet bittersweet) -- note, so long to Convictions as we have known it.  The short experiment into the blog world has been fun.  I look forward to participating in the new format, and this now blog-homeless-writer welcomes offers of blog-shelter from those who may have interest in the honest application of conservative principles to, well, even conservatives.

Surprise Agreement at Senate Hearing on "Secret Law"

I testified yesterday on "Secret Law and the Threat to Democratic and Accountable Government" before the Senate judiciary committee's subcommittee on the Constitution. The hearing, chaired by Sen. Feingold, covered the range of the Bush administration's "secret law." I talked primarily about the terrible harm of secret (and profoundly flawed) opinions of the Office of Legal Counsel. 

Briefly, I told the committee that the central question is: "May OLC issue binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws—and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly ... the answer to that question must be no." "This combination—the claimed authority not to comply with the law and to do so secretly—is a terrible abuse of power, without limits and without checks. It clearly is antithetical to our constitutional democracy." (My written testimony is here.)

OLC's Deputy Assistant Attorney General John Elwood denied there was any problem (at least, not since he joined the government in late 2005—he pointedly avoided talking about the John Yoo and other memos that came before). He said that he agrees with, and OLC now follows, the 10 "Principles to Guide the Office of Legal Counsel" co-authored by me and 18 other former OLC lawyers in response to the initially leaked OLC torture opinion. I said no, from what we can tell from what's public, they don't follow them all, and they certainly didn't in the Yoo years. Elwood also sparred with Sens. Feingold and Whitehouse, who were incredulous at his claims that the Bush administration, in fact, is keeping Congress briefed and informed about OLC's legal conclusions and reasoning (even if it won't always release its opinions). 

Republican ranking member Sam Brownback, Elwood, and Republican-invited witness Brad Berenson (former associate counsel to President Bush) took issue even with the term "secret law," claiming that OLC simply interprets laws for the government, and doesn't make law that governs the lives of private persons. You can well imagine the responses to that claim—government torture and spying don't affect the lives of people!—from me and the other witnesses invited by the Ds (Steven Aftergood of the Federation of American Scientists, Heidi Kitrosser of University of Minnesota Law School, and J. William Leonard, former director of the Information Security Oversight Office). (Also invited by the R's was David Rivkin.)

So far, all very predictable. Here is the most surprising and promising thing about the hearing: Berenson said he agreed with my central point that we have a problem with the Bush administration violating laws in secret (though he argued, and I disagreed, that on many national security matters only Congress and not the American people need to be notified). Even more notable, Berenson also agreed with my suggestion (building on a proposal from Professor Trevor Morrison) that perhaps Congress should enact legislation to require additional reporting, so that the executive branch has to tell Congress not only when it refuses to comply with a statute, but also when it (mis)interprets a statute by relying on the constitutional-avoidance doctrine. (A standard ploy, of course, by the Bush administration is to deny that it in fact is violating statutes, but instead claim it is interpreting them in order to avoid a conflict with Bush's sweeping and plainly incorrect views of his own constitutional powers.)

Berenson's agreement with my proposal led Sen. Brownback to turn to Sen. Feingold and say he would be interested in working with him to pursue the possibility of such legislation. Stay tuned ...

Rx for OLC: Pursue Integrity not Investigation

I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly:  Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?

The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no."   That seems to be the answer Senator Obama wisely supplied.

Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture.  In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.  

Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position.  Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks.  And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.

The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."

Next Time?

Seems to me that about the most useless thing any of us can do with the Yoo memo is form character judgments. Whether his work at OLC was animated by bad motives or a well-intentioned desire to avert a terror attack is beyond the scope of a legal blog. Let’s leave that to the angels. This discussion is only useful insofar as we grant that folks at OLC will always face enormous pressure, particularly in the wake of a tragedy like 9/11, to make decisions that may look really bad in hindsight. Doug has some prescriptions for checking that pressure, as does Dawn. Instead of bickering about character facts not in evidence, we should be thinking about what happens the next time.   

Is an Objective Appraisal of John Yoo's Work Possible?

While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.

Geneva Conventions

First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban.  Here there is reason to believe that the administration in not opting to apply the Convention committed error.  But, of course, this is wonderfully clear hindsight.  Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.

Better to Put It in Writing

There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors.  It is unfortunate this more balanced appraisal was not memorialized.  Recently, in Esquire, the Professor stated:  "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy."  Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done.  He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum.  Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."

Not His Job

The last point - that it was not OLC's job to set policy is very important to remember.  One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving.   It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right."  To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.

If You Can Do Better, Why Didn't You?

Professor Yoo's work has been called "slapdash" by Professor Goldsmith.  Professor Goldsmith has written an important book on his very short tenure in OLC (nine months).  I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period.  He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally.  Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair."  It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."

Nobody Home

Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent.  To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.

In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture.  He does not say what source he would have used and why it was more analogous.  The phraseology "organ failure or death," was at least specific, and had been written into law by Congress.  Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific.  Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters.  It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person.  It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.

Law Is Not Morality

When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all."  John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped?  As it turned out, it was not.

The Totality of the Circumstances 

The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons.  Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war.  Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations.  It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well.  The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them.  What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.

It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience.  Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.

The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity.  This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that. 

To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime."  But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.

Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.

What Have We Learned?

What is the importance, then, of the recently released 2003 memorandum?  In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given.  What is remarkable is that this attitude continued right through 2003.  When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different. 

Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice.  It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches.  Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.

It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:

"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of  Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."

No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.

Outrage at the Latest OLC Torture Memo

I want to second Dahlia's frustration with those who don't see the newly released Office of Legal Counsel (OLC) torture memo as a big deal.  Where is the outrage, the public outcry?!  The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

Yes, we've seen much of it before.  And yes, we are counting down the remaining months.  But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power.  Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law--and not just for the remaining nine months of this administration, but for years and administrations to come. 

Dahlia's aptly summarizes this just-released memo's constitutional conclusion: "if the president authorizes it, it isn't illegal."  

OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted.  That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants.  The earlier-leaked 2002 OLC torture memo said the same in connection with the CIA (a program the Bush administration sought to reassure us was extremely limited and controlled).  Here, the military is the group exempt from the laws.

One striking example of the memo's plainly flawed reasoning:  In an 81-page memo, Yoo relegates to a footnote (footnote 13) and then quickly dismisses the clearly correct counter-argument that Congress may regulate interrogations under its constitutional authority to "make Rules for the Government and Regulation of the land and naval Forces."  His only support to the contrary is another still-secret OLC Bush administration memo, issued just the year before, that concluded Congress "cannot ... make rules for the Armed Forces to regulate military commissions."  If Congress cannot regulate military commissions, Yoo argues, it cannot regulate interrogations.  Of course, the Supreme Court in Hamdan has since held that not only does Congress have the authority to regulate military commissions, it had regulated them to render Bush's military commissions unlawful. 

John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism--and withdrawal--of the memo.  Not only that, Yoo attempts to spin the memo's advice on presidential power as "near boilerplate:"  "Far from inventing some novel interpretations of the Constitution, our legal advice to the President, in fact, was near boilerplate."

I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since.  I know (many of us know) Yoo's statement to be false.  And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law. 

Far from "near boilerplate," recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace. 

To be precise, President Bush has not been foolish enough himself to say "If I authorize [torture, domestic surveillance, fill in the blank], notwithstanding federal statutes to the contrary, it isn't illegal."  At least not so that he can be directly quoted.  (Actually, President Nixon didn't say it that clearly either until after he had resigned.)  

Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor?  Of course not.

As Dahlia points out, Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity--or for breaking the laws.  In fact, the ones at Justice who didn't last are the officials (like Goldsmith) who dared to say "no" to the President-which, by the way, is OLC's core job description.

Far from firing anyone, President Bush asked for this kind of distorted legal advice.  Remember, from day one the President sent his lawyers the express message that they were NOT to interpret the law impartially and straight up.  Instead they were to further his and Vice President Cheney's agenda of expanding presidential power, of restoring it to its pre-Watergate condition, and leaving the presidency stronger than when Bush took office.  And that was before 9/11.  After the terrorist attacks, "Legally, the watchword became "forward-leaning," by which everybody meant:  ‘We want to be aggressive.  We want to take risks.'"  (For support for all this, and more, read the excellent recent books by Jack Goldsmith and Charlie Savage.)

One relatively rare attempt to tell the President "no" led to the outrageous (though still too-little-known and condemned) trip by Bush's counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft's hospital bedside in intensive care, in a failed attempt to get him to overrule Acting Attorney General James Comey's and Jack Goldsmith's determination the President did have to comply with the law.  (Remember this Youtube Comey-testimony/Godfather classic?)  After being forced to make a change in the face of the threatened resignation of much of the Justice Department leadership, what did President Bush do?  He nominated Gonzales to be his next Attorney General, to replace Ashcroft!

Even today, President Bush insists on his re-nomination of Steven Bradbury to head OLC, despite (because of?) Bradbury's continued flawed, unjustifiably still-secret advice in support of extreme methods of interrogation (among other issues).

The correct response to all this?  Marty has several good suggestions to start.  And outrage.  Directed where it belongs:  at President Bush, as well as his lawyers.

Tortured Memories—Of Yoo and Hillary—Legal Memoranda in the Shape of History

If true, the allegations that Hillary Clinton as a young lawyer assisting the congressional Watergate investigation sought to hide files, and the precedents within them, in order to deny Richard Nixon legal counsel in the context of an anticipated impeachment inquiry are once quaint and deeply troubling. The story is quaint because it is reminiscent of the well-told tales of first law students hiding materials in inappropriate places in the law library during moot court competitions. Neither Hillary's alleged misdeed nor such law school chicanery is ethical, but neither would be modernly possible given the modern electronic nature of how we access materials today, be they books or files. So much for the quaint part.

Hillary's alleged efforts to deny legal counsel to Nixon also conflicts with the position then taken by one of the most notable liberal members of the House, Don Edwards of California. Edwards had a reputation for taking brave stands against the remnants of Joe McCarthy's House Un-American Activities Committee and the FBI abuses that ironically enough would give rise to the Keith case and FISA. Edwards did not see civil liberty with a partisan glint, and he was one of the strongest voices against those in the Democratic party—perhaps we are now learning misadvised by the then Hillary Rodham—advocating the denial of  legal counsel to President Nixon in his prospective impeachment trial.

So the troubling part of this swirling story is not just that the revelation may confirm a longer and deeper pattern of prevarication beyond the Bosnian sniper story, but also that it suggests a calculated distortion of the law aimed at adversely affecting both individual right and democratic process. Tonight on the NewsHour, New York Times reporter Eric Lichtbau called the newly released John Yoo memorandum "shoddy." I think that an unfair characterization given the intelligence of Professor Yoo and an insufficiently nuanced characterization given the context of 2003 and the more careful analysis Marty Lederman is supplying on the topic on this site. It is a description that also fails to capture how ill-served the president and the executive branch have been by the unprecedented turnover and number of acting officials at the helm of the once venerable Office of Legal Counsel, which is intended not only to make tough calls that may be politically unpopular, but also to have the good sense to send back rough drafts of legal analysis or at least not circulate them for political acceptability. But however one pieces together the story of Messer's. Bybee, Yoo, Levin, Goldsmith, Bradbury (I know I must be leaving someone out) in the OLC, the claimed offense of Mrs. Clinton is not sloppy, but corrupt, work.

Given the cultural significance of Mrs. Clinton's run for the presidency, I hope the allegation proves false. It is healthier for the body politic for Mrs. Clinton to lose to Sen. Obama on the merits. If she is dispatched on character failing, it will stir up all the justified and unjustified animosities that her husband's impeachment ordeal generates in public discussion. 

There is a different account of Hillary's service in the Annual Survey of American Law. There it was written, "In 1974, while she was serving on the Impeachment Inquiry staff of the Judiciary Committee working on the Watergate proceedings, Hillary Rodham was Sara Ehrman's houseguest for nine months." As Ehrman tells it, "She was brilliant, she was a star, she could have done anything in Washington."

It would be most unfortunate were "anything" now to have a much different meaning than what was intended by the Survey's laudatory profile—namely, in fact, she did anything she wanted, including putting herself above the law.

Doug Feith's Fig Leaf

OK, true, Orin and Jack, lawyerly can mean trussing up bad and thin arguments with questionable analogies from other cases and a horde of citations. (Though an awful lot of the ones in this Yoo memo are to other OLC memos from the same era—the ones Marty wants to see.) And I wouldn't say a thoughtful and responsible weighing of counterarguments is the m.o. here.

Any reactions to how this discussion relates to the excellently timed Vanity Fair piece on Guantanamo and torture interrogation posted today? The article concentrates on the 2002 memos that had previously been disclosed, which Phil has pointed out previewed much of the reasoning in the newly released March 14, 2003, memo. Since I'm the one arguing that the legal reasoning of Yoo and the other torture lawyers is shoddy and unmoored, I am struck by this exchange between the writer, Phillippe Sands, and Doug Feith: 

Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? "Oh yes, sure," [Feith] shot back. Was that the intended result?, I asked. "Absolutely," he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? "That’s the point," Feith reiterated ... That indeed was the point. The principled legal arguments were a fig leaf.

Yoo of course argues otherwise. I believe Feith. And even if these bald quotes aren't a surprise—apparently to him, they're uncontroversial—what's useful about these moments when new memos drop from DoJ, I think, is that they give us a chance to remember that we should be shocked, even if we no longer can be.

 On another note, Nick Rosenkranz points us to this Federalist Society debate over Medillin v. Texas. 

Yoo's Utter Glib Certainty

What takes my breath away about the Yoo memos, now that we can finally read them, is their air of uttery certainty. One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war-making power. Congress has none. The president's commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt. It's as if he's writing as a Supreme Court justice, not a government lawyer. Which is understandable in one sense, since the Office of Legal Counsel functions like the government's internal Supreme Court—but also exhibits the terrifying results of dishonest, glib analysis by lawyers drunk on that very power.

More tripping lightly over what should be boulders: "We conclude that the War Crimes Act does not apply to the interrogation of al Qaeda and Taliban detainees because, as illegal belligerents, they do not qualify for the legal protections under the Geneva or Hague Conventions." Also blithely concluded, the prohibition against torture "does not apply to interrogations conducted within the territorial United States or on permanent military bases outside the territory of the United States." And again, Common Article 3 of the Geneva Convention—the backstop shielding enemy detainees—does not cover "an international conflict with a non-governmental terrorist organization." As David Luban has taken pains to explain, that's a tendentious and discredited view of Common Article 3. Yet there's no hint of all the debate and argument roiling just beneath the surface.The effect is entirely unsober and lawyerly.

On Page 47 of the Yoo memo, if I'm not mistaken, there's the amazing assertion that the Convention Against Torture doesn't apply whenever the president says it doesn't. "Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." Doesn't this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim? In my quick scan so far of the tortured (sorry) reasoning here, I can't find anything other than ipso facto—because I say so, the president says so.

Endorsing Obama

Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend. 

This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.

As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.

In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them. 

No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.

Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.

Restoring Our Nation's Honor

by Dawn Johnsen

For this my inaugural substantive blog I want to pose a question much on my mind:  how do we restore our nation's honor, as well as our own? 

I am a bit tempted instead to join the fray over VP Cheney's filing of the D.C. guns brief, flatly at odds with the Bush administration's brief, begun by David Barron. Perhaps more later, but I can't resist just a quick response to Adam White's attempt to defend Cheney's consistency by repeating what I personally find a ludicrous argument that the VP is not part of the executive branch. Adam suggests that perhaps "the Office of the Vice President ... is simply sui generis." This suggestion that we can have constitutional entities not squarely in one of the three constitutional boxes simply is not going to fly with unitary-executive types of Cheney's stripe-at least not if they are being principled.

But back to the question weighing on my mind--which I know also concerns many fellow Slate bloggers, because they have eloquently expressed and forcefully addressed it in their work:

[T]he US administration ... not only sanctions the torture of prisoners taken in the so-called wars on terror but is active in every way to subvert laws and conventions proscribing torture. ... [T]he issue for individual Americans becomes a moral one: how, in the face of this shame to which I am subjected, do I behave? How do I save my honour?

These are words I recently read in Nobel-prize winner J. M. Coetzee's new novel Diary of a Bad Year. They hit me hard. What are we Americans to do to, confronted with a government that does not respect the legal and moral bounds of human decency, a government that believes torture is justified whenever the president so decrees and that all views to the contrary, of Congress and the world community, are to be ignored? How do we save our country's honor, and our own?

I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. I served at OLC during the Clinton administration, including as OLC's head from 1997-98. It was a great privilege to serve this country I so love-and a tremendous and painful shock to see the corruption of OLC's work in the torture memo. One response from 17 former OLCers (including Slate bloggers David Barron, Walter Dellinger, and Marty Lederman) was to develop 10 "Principles To Guide the Office of Legal Counsel" (published here and in an appendix to this article). We hoped these principles, if followed, could help prevent future OLC advice that was similarly, in the words of fellow blogger and former OLCer Jack Goldsmith in his must-read The Terror Presidency, "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."

The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. Now let me be clear (before "comments" erupt): I am not in any way equating anything the Bush administration has done with the brutal mass murder of 800,000 people. That would be ridiculous. President Bush correctly described the Rwandan genocide as one of the most horrific episodes of the 20^th century.

But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed.

A more comparable incident, in terms of scale and potential to serve as a model, is how the Canadian government dealt with its complicity in the United States' "extraordinary rendition" of Maher Arar. The Bush administration wrongly suspected Arar, a Canadian, of terrorism and seized and "rendered" him to Syria in September 2002, where he was tortured for almost a year. The Canadian government extensively investigated the incident (hampered by the United States' refusal to participate); it ultimately issued a lengthy report and formal apology, compensated Arar with $10 million, and filed a formal protest with the United States. The Bush administration, to the contrary, has refused to apologize and has used claims of national security to keep secret any details, though when pressed in a congressional hearing, Secretary of State Condoleezza Rice finally admitted the United States had mishandled the case.

The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. Coetzee writes of his fear that "[t]he worst of their deeds we will never know":

The judgment of history is clearly a matter that exercises the minds of the US administration too. History will judge us on the basis of the record we leave behind, they say in public; and over that record, they remind themselves in private, we have an unparalleled degree of control. Of the worst of our crimes let no trace survive, textual or physical. Let the files be shredded, the hard drives smashed, the bodies burned, the ashes scattered. ... On their priority list, security-by which they mean secrecy-comes first, second, and third.

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.

Greetings

By way of brief introduction: I am a professor of law, teaching constitutional law at Indiana University-Bloomington School of Law, so will be writing from the Heartland, as they say. I am a New Yorker by birth, but now have a Hoosier husband and two Hoosier sons (who, like Deborah Pearlstein, are Colts fans, but inherited from my family a deep love of the Yankees). I have happily called Bloomington my home for almost 10 years now, and for the previous 10 lived and worked in D.C. (also happily). Currently of note here in Indiana: People are quite excited that their votes in the Democratic presidential primary likely will matter for the first time in memory. 

I am new to blogging but grateful to Dahlia Lithwick and Emily Bazelon for prior opportunities to publish for Slate, here and here. Many thanks to Dahlia, Emily, and Phil Carter for the invitation to be part of this project. Anyone who may have interest in my more academic work can check out some articles posted here. Of most current relevance is Faithfully Executing the Laws, a piece from a 2007 UCLA symposium that examines the failure of President Bush and his lawyers to live up to this constitutional command, particularly regarding the use of torture and other extreme interrogation practices. 

My scholarship and interests reflect my two principal areas of legal experience before teaching. Most recently, during the Clinton administration, I advised the president and the executive branch on legal matters for five years, including as the acting assistant attorney general heading the Office of Legal Counsel. For the six years before that (1987-1993), I worked to safeguard reproductive rights at a time when they seemed gravely in danger (as they do again today) as legal director of NARAL Pro-Choice America and at the ACLU. 

I serve on the board of directors of a wonderfully vital organization, the American Constitution Society for Law and Policy, which seeks to promote progressive legal values through a network of more than a hundred law school chapters and lawyer chapters around the country. ACS sponsors a terrific annual convention, this year June 12 to 14 in Washington, D.C.