The Justice Department’s Office of Legal Counsel (OLC) has an important job.
By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.
All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President’s formal approval.
In addition to serving as, in effect, outside counsel for the other agencies of the Executive Branch, the Office of Legal Counsel also functions as general counsel for the Department itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General’s approval. It also performs a variety of special assignments referred by the Attorney General or the Deputy Attorney General.
If you are, say, the Director of Central Intelligence, and you get instructions to implement a policy that you think is illegal or unconstitutional, you can ask the OLC to weigh in on the matter. If they rule that the policy is legal and constitutional, then you and your employees are entitled to rely on that information as a legal defense. The presumption is that the OLC provides a legal shield. Even if a court later determines that the OLC’s legal advice was in error, those that acted with the OLC’s blessing are thought to have been acting in good faith.
This is how the system must work because administrative officials cannot be expected to make complex legal determinations about the separation of powers, wartime powers, etc. To use an extreme example, the OLC could say that it is legal for the president to order the assassination/killing of terrorist suspects in foreign lands using, say, aerial drone technology. People that relied on that legal advice would not later be subject to prosecution for murder, even if the Supreme Court ruled that the president does not have the power to authorize extralegal killings.
That the government is set up this way produces a high standard on the OLC to give sound, moral advice. And that is precisely what the OLC under the Bush administration did not do. The advisability and legality of many of Bush’s more extreme tactics in the ‘War on Terror’ are still controversial, but there is a consensus that a lot of the legal justifications for those tactics drafted by the OLC were of a kind that would get you flunked out of law school.
In essense, the OLC gave legal cover to commit war crimes, and they did it using facially flawed legal analysis. This isn’t supposed to happen. It means that the government officials that relied on that legal analysis to commit war crimes are basically immunized for their acts. The next questions are, what is the proper penalty for giving morally defective and legally incompetent advice, and can anyone be held legally accountable for actions deemed legal by the OLC?
The typical defense for Bush’s OLC lawyers goes like this:
But John C. Eastman, the dean of the Chapman University law school and a friend of Mr. [John] Yoo who invited him to teach there this semester, argued that it was deeply unfair to single out the Bush lawyers for the advice they gave under intense pressure after the 2001 terrorist attacks. “It’s unfortunate, and quite frankly it’s dangerous,” because it could make officials risk averse, Mr. Eastman said, blaming partisan politics.
This is a two-pronged defense. First, any error in judgment is mitigated by the circumstances [extreme fear] under which the decisions were made. Second, punishment would have a chilling effect that would undermine the functioning of government and our national security. A fall-back defense is that they were just following orders.
All three defenses need to be taken seriously, but they all ultimately fail. The mitigation argument is more appropriate to consider during sentencing than as absolute defense. Fear can explain dereliction of duty and immoral behavior, but it cannot fully excuse it. The ‘chilling effect’ argument has some merits, but ignores the chilling effect on government employees of these lawyers’ actions that undermined the credibility of the OLC as absolute legal authority (and, thus, the solidity of their advice as a defense). Failure to punish their aberrant acts will also undermine the functioning of government and possibly our national security. It would also undermine our moral authority with unpredictable results. And it has never been a sufficient defense to argue that you were just following orders.
The problem is that bad lawyering is not necessarily illegal even if it warrants sanctions or disbarment. And OLC lawyers are no ordinary lawyers. They literally determine what the law is until the courts rule otherwise. We don’t have a clear-cut way of dealing with an OLC that makes bad faith arguments. Lastly, even if the fault for these rulings lies with the Justice Department lawyers that made them, that doesn’t absolve the administration figures that sought those legal rulings of wrongdoing.
Considering the complexity of the problems created by this mess, it doesn’t seem that the courts are well-equipped to arbitrate what should happen. These issues touch on every ambiguity in our system of separation of powers and ultimate legal authority. Perhaps, for that reason, a Truth Commission is the best we can do.
Yet, it seems one thing should be easy. Bush’s OLC lawyers should be disbarred.