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Legal Commentary

: Balkinization

The Missing OLC Memos

By Jack M. Balkin

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ProPublica has published a list of OLC Memos relating to the Bush Administration's war on terror, including both published memos and those which are secret but whose essential contents they have been able to discern from other publicly available information.

The topics of some of these still secret memos are, to put it mildly, eye-opening, including memos about American interrogators' immunity from prosecution under the War Crimes Act, the President's authority to detain U.S. citizens, the President's authority to engage in extraordinary rendition, the legality of various NSA intelligence gathering activities (which include domestic as well as foreign surveillance), the analysis of specific interrogation practices and the approval of specific CIA interrogation techniques. These memos provided the legal justifications that the Administration relied on to engage in torture and domestic surveillance.

As I argued in my New York Times Op-ed a few weeks back, one of the first things the Obama Administration must do is make these OLC memos public, to the extent that doing so will not seriously damage national security. At the very least it should release redacted versions of these memos or summaries.

Secret laws corrode the foundations of democratic government. One of the reasons why the Bush Administration was able to do so much mischief to our constitutional system and to violate human rights without accountability is that its lawyers used a system of secret opinions to legitimate whatever the Administrations sought to do. These are practices that must be reformed immediately by the new Administration.

Full post as published by Balkinization on January 28, 2009 (boomark / email).