Bush's Secret Counterterrorism Law Book--and the Demands to Release It

Last week, President Barack Obama formally repudiated [2]
certain counterterrorism tactics, including coercive interrogation,
that his predecessor's administration had gone out defending.

Said Dick Cheney in one parting television interview touching on aggressive interrogation: "I can't claim perfection [3],"
but "I can tell you that we had all the legal authorization we needed
to do it, including the sign-off of the Justice Department."

Then-President Bush put it more simply. He told CNN's Larry King, "I got legal opinions that said whatever we're going to do is legal [4]."

They
were talking about legal analyses generated by the Justice Department's
Office of Legal Counsel, a small but powerful corps of lawyers who give
"authoritative legal advice [5]"
to the executive branch. OLC opinions, or "memos," effectively tell
executive agencies, including the military, what they may or may not do
as a matter of law. Questionable conduct backed by a favorable OLC memo
will almost always pass muster. In other words, OLC memos serve as law
in the executive branch.

But Bush and Cheney neglected to
mention that many OLC memos assessing their strategies for
interrogation, detention, surveillance and prosecution remain secret [6].
With an ardent advocate of government openness -- and critic of Bush
policies -- slated to take over the OLC, however, people may soon know
more.

Some of the memos are by now well-known, for example the August 2002 memo that narrowed the definition of torture [7]. But many counterterrorism-related OLC memos, including all those addressing the administration's domestic warrantless wiretapping program [8], still haven't been released.

ProPublica has compiled the first interactive list of these crucial records [1] -- missing and known.

These
memos laid the legal foundation to many of Bush's most criticized
counterterrorism efforts -- the claims of unilateral executive
authority to surveil, detain, and try terrorism suspects, unfettered by
Congress or international law. Their disclosure could reveal what move
was considered when, why and at whose behest.

Dawn Johnsen [9],
a liberal constitutional law professor, has been nominated by Obama to
take over the OLC. She has publicly ripped the Bush OLC for its
secrecy, accusing it of "a terrible abuse of power [10]" by its "practice of making and relying on secret law [11]." (Johnsen's confirmation is not yet scheduled.)

Her
comments carried credibility, as she'd served for five years in Bill
Clinton's OLC including as its chief. She decried that the public
learned of "extreme" interrogation and secret overseas prisons "only
because of government leaks" and "years late." That the Bush
administration "continues to withhold other memos," she wrote, demands "outrage." [12]

Today,
ACLU attorneys sent Acting Assistant Attorney General, David Barron, a
letter asking the DOJ to release the memos. (Asked by ProPublica when
or whether the still-secret memos will be released, a Department of
Justice spokesperson declined to comment.)

The Bush
administration withheld the memos, its lawyers have said in court
filings, on national security grounds and to protect internal
confidentiality. Even after warrantless domestic wiretapping had been
publicly exposed, then-Assistant Attorney General Peter Keisler told
one federal judge in an ACLU FOIA suit [13], disclosure of OLC memos on the subject could "cause exceptionally grave damage to the national security."

These
can be legitimate grounds for avoiding Freedom of Information Act
disclosure requirements. Courts typically decide FOIA exemption claims
on a document-by-document basis, sometimes reviewing classified
information in private but sometimes deferring to the government's
claim that the contents must remain a protected state secret. Some of
the Bush OLC's claims of FOIA exemption have already been approved by
judges, but the ACLU is asking that the new administration reconsider
all such positions in the new spirit of disclosure Obama embraced [14] last week.

Bush's arguments for confidentiality ranged from the attorney-client privilege to "executive privilege [15]"
to the "deliberative process privilege" -- which protects free
discussion among policymakers before a final decision is made -- to the
attorney work-product privilege, which shields strategizing done by a
lawyer for litigation purposes.

Johnsen herself has said that
some OLC advice should not be disclosed. National security
classification can be warranted, she said in a statement of OLC guiding principles [16]
co-published with other alumni (several returning under Obama) shortly
after exposure of the so-called torture memo. To encourage agencies to
seek to avoid unlawful conduct, she said, "OLC should honor a
requestor's desire to keep confidential any OLC advice that the
proposed executive action would be unlawful, where the requestor then
does not take the action."

But the presumption should be
"transparency," Johnsen said, and exceptions should be construed
narrowly. The Bush OLC's secrecy, said Johnsen, had disabled Congress
and the courts from checking executive-branch "overreaching or abuses,"
for the simple fact that they "do not know what the executive branch is
doing."

National security should trump disclosure only in
"extreme cases," she told a Senate Judiciary subcommittee last April,
and can be satisfied by limited redactions of "factual details" or
"some delay." She will now have the chance to decide, with an insider's
view of the stakes, whether the Bush administration's decisions to
withhold made sense.

Besides being antidemocratic, some have
argued, OLC secrecy is dangerous for practical reasons: It could permit
conduct based on faulty premises. The August 2002 "torture memo [7]"
was among a number written around that time that were "deeply flawed"
and "sloppily reasoned," according to Jack Goldsmith, who helmed Bush's
OLC from October 2003 to June 2004 and then wrote a book about it [17].

Marty Lederman [18]
-- an OLC alumnus who is returning as Johnsen's deputy -- has said
that, had the memo been exposed to public scrutiny before it was leaked
(and then rescinded) in 2004, "it would not have taken more than two
years for the Office to make much-needed corrections."

OLC
opinions on warrantless wiretapping could prove certain criminal or
immigration proceedings to have been "tainted," says ACLU attorney
Melissa Goodman. It is "impossible to tell" which of the withheld memos
would be most revealing, but among those she is eager to see based on
vague descriptions in government court papers: a Jan. 9, 2001 memo that
seems to discuss the legality of the government's warrantless
wiretapping program, and a Feb. 25, 2003 memo addressing the "potential
use of certain information collected in the course of classified
foreign intelligence activities."

Even if the Obama
administration releases the Bush OLC memos, the clamor from critics is
unlikely to end. Says Jameel Jaffer, director of the ACLU's National
Security Program, the memos are important to seeking "accountability"
for those who "purported to justify conduct that the U.S. once
prosecuted as war crimes." Some scholars and advocates have called for investigation [19], if not prosecution [20], of the Bush OLC lawyers' role in what they call human rights violations.

The Justice Department's Office of Professional Responsibility is investigating the lawyering [21]
behind Bush interrogation policies for conduct falling below agency
standards. NYU law professor Stephen Gillers, an expert on legal ethics
and the discipline of lawyers, has said the interrogation-related OLC memos [1]
produced by Jay Bybee, who headed the OLC for two years until November
2003, and his deputy, John Yoo, "are an abysmal piece of work" and should be found deficient [22].

Asked
yesterday to comment on the criticisms and investigation of his work,
Yoo said, "I really cannot directly address your questions on the
record." He said that pages 165 to 204 of his book, War by Other Means [23],
spoke to these issues. (Bybee did not respond to a request for comment
forwarded by a spokesperson for the U.S. Court of Appeals for the Ninth
Circuit, where Bybee is now a judge.)

Two veterans of the OLC,
from the Bush Sr. and Clinton administrations, have slammed Yoo and
Bybee's critics. In a commentary for American Lawyer, Jeffrey
Shapiro and Lee Casey wrote that the memo's authors properly answered
the specific legal questions they were asked rather than expound on
policy or morality. They called Giller's criticisms "personal" and
"completely unpersuasive."

So far the Obama administration
hasn't committed to disclosing the withheld memos, much less pursuing
next steps. Attorney General nominee Eric Holder was circumspect when
asked by Republicans on the Senate Judiciary Committee whether
favorable OLC opinions would shield a government actor from liability.
It would matter whether the opinion was "appropriately and in good
faith drafted," he said in his confirmation hearings. If Holder is
confirmed, as is generally expected, the OPR investigators will answer
to him.

Johnsen has said, "Questions of atonement and remedy and prevention" can only be answered with "transparency [24] about the wrong committed" -- with "full disclosure."

See our interactive chart of the Bush administration's still secret memos [1].