Constitutional Law

OLC Memos Trigger Responses

Developments continue rippling from the release of nine Bush-era Justice Department memos taking an expansive view of executive authority. In the memos, Bush administration lawyers advocated ignoring venerated cornerstone's of American civil liberties, including the Posse Comitatus Act forbidding domestic military operations, as well as the First and the Fourth Amendments to the U.S. Constitution.

Sources tell The Washington Post that, in the wake of yesterday's revelations, "Justice Department officials intend to release more secret legal memos that underpinned the Bush administration's approach to national security issues." So far, those memos have stemmed from the Justice Department's Office of Legal Counsel (OLC) -- an office which former ACS Board Member Dawn Johnsen has been nominated to head under President Obama.

Yesterday's declassification of OLC memos was due in part to a civil suit against John C. Yoo. Yoo wrote or co-wrote seven of those memos in addition to the so-called "torture memo." Yoo, who is also the subject of an ethics investigation for his OLC work, spoke to a reporter in Orange, California yesterday where he is currently a visiting professor at Chapman University.

"These memos I wrote were not for public consumption," Yoo told the Orange County Register. "They lack a certain polish. I think [it] would have been better to explain government policy rather than try to give unvarnished straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently."

Reverberations from the revealed OLC memos were also felt today on Capitol Hill. House Judiciary Committe Chair Rep. John Conyers Jr. (D-Mich.) said that the revelations, in addition to the 92 interrogation tapes discovered to have been destroyed by the CIA, make a compelling case for investigating the Bush administration's tactics in the so-called "War on Terror."

On the other side of the Hill, the AP reports that the Senate Judiciary Committee's hearing on whether to hold "Truth Commissions" was divided along party lines. Sen. and Committee Chair Patrick Leahy (D-Vt.) warned that his proposal for a Truth Commission to look into Bush-era abuses of executive power was far preferable to "accountability through more traditional means." Leahy aides said that the alternative would be congressional hearings controlled by Democrats.

Sen. John Cornyn (R-Texas) countered, "The idea that this so-called Truth Commission would somehow resolve the good-faith disagreements ... is just asking us to believe in the tooth fairy."

Today's hearing included testimony by six witnesses, including Thomas Pickering, who served as ambassador to the United Nations under the first President Bush.

"We must, as a country, take stock of where we might have been and determine what was not acceptable, what should not have been done, and what we will never do again," Pickering told the Judiciary Committee. "It is my sincere hope that his Commission will confront and reject the notion, still powerful in our midst, that these policies are proper choices that could be implemented again in the future."

Jeremy Rabkin, a George Mason University professor of constitutional law, disagreed with those supporting the proposal. "What many advocates of a Truth Commission seem to have in mind is not simply an exercise in gathering facts, but in assessing blame."

As initially proposed, a Truth Commission would look into alleged wrongdoing by the Bush administration, including domestic wiretapping, the politicization of the Justice Department and torture. The Commission would be chosen by but independent of Congress and would not have authority to bring criminal charges. A recent public poll showed that two thirds of Americans support such investigations.

Full post as published by ACS Blog on March 04, 2009 (boomark / email).