The President's Lawyers
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 Office of Professional Responsibility, the arm of the Justice Department that polices the ethical behavior of the department's lawyers, recently disclosed that it is investigating whether the legal advice contained in the OLC's memos on torture was "consistent with the professional standards that apply to Department of Justice attorneys." The watchdog is also studying the advice given by OLC lawyers in support of the administration's terrorism surveillance program. These investigations could be helpful if they shed light on how some of the ablest lawyers in the country came to craft something as shoddy and dangerous as the memos that authorized such procedures as waterboarding, or simulated drowning, for use on prisoners suspected of involvement with al-Qaeda. The probe, however, should not become a witch hunt in which low-level lawyers are hung out to dry for the questionable judgments of their superiors.
The Justice Department and congressional overseers need to take further steps to ensure that the OLC performs properly in the future. Most important, the OLC should publicly release more of its opinions, as was routinely done during Janet Reno's tenure as attorney general during the 1990s. Too many Bush OLC memos remain secret, with only a handful of administration officials being privy to their conclusions. Congress has the right to know how laws are being interpreted -- or whether they're even being enforced.
If lawmakers are aware of interpretations with which they disagree, they can return to Capitol Hill to craft clearer or more vigorous legislation. If certain OLC memoranda deal with national security matters that are deemed too sensitive for public consumption, the department should nevertheless allow members of the relevant congressional committees to read the opinions in private and discuss them in closed session. Such checks and balances help the political branches stay honest and protect the rule of law from erosion.