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Now Is There Any Excuse for Not Disclosing the OLC Opinions?

By Jack M. Balkin

The Administration has now publicly acknowledged that it used waterboarding, that it might do so again in the future, and that it has concluded that waterboarding is lawful, at least under certain circumstances (apparently, where it doesn't shock this Administration's conscience). Virtually the entire rest of the world, including, as far as I can tell, every legislator (both Democratic and Republican) who has spoken to the question, has concluded that waterboarding is categorically unlawful because, at the very least, (i) it is torture, prohibited by the torture act and Common Article 3, and the Convention Against Torture; (ii) it is cruel treatment, prohibited by Common Article 3; and (iii) it shocks the conscience, therefore violating Article 16 of the Convention Against Torture as well as the McCain Amendment.

The Department of Justice disagrees. And it has therefore authorized the CIA to engage in conduct that the rest of the world considers unlawful torture and cruel treatment. (In his testimony today, CIA Director Hayden euphemistically explained that the CIA uses such techniques -- which the FBI and DOD representatives testified are unnecessary for the collection of vital intelligence -- in order to get detainees "into a zone of interrogation.")

Yet DOJ will not disclose the legal basis for its unorthodox conclusions. I was shocked last week when Judge Mukasey told Senator Feingold that DOJ would not share with the Judiciary Committee -- even in closed session -- the legal explanations of why the "approved" CIA techniques are not unlawful. He repeated essentially the same thing to Representative Conyers yesterday. (Thanks to Paul Kiel for the video and transcript here.)

As I've argued here repeatedly, there is almost never any justification for the existence of what is, in effect, secret U.S. law about the limits of how or government can use force against individuals -- or of the existence of a "classified" law that departs so fundamentally from how the law is widely understood by the lawmakers and by the people. (Moreover, there should be a strong presumption in favor of making OLC Opinions public as a general matter. See Principle No. 6.)

But certainly where, as here, the underlying facts (and legal conclusions) are now acknowledged, and where there is such a stark and important contrast between the law as the public and Congress understands it and the law as the Executive interprets it, it is critical that the legislature and public be able to understand and evaluate the Administration's legal arguments.

Why hasn't the Department's audacity incensed more legislators? If the Administration will not even provide Congress, let alone the public, with a public accounting, and explanation, of how it is interpreting Congress's own enactments, we really are setting a new benchmark for the degradation of our system of meaningful checks and balances.

It's this -- not the failure to prosecute -- that should have Congress up in arms. Unless and until DOJ shares, and tries to defend, all of the relevant DOJ memos (including, of course, the John Yoo memo of March 2003 and the 2005 Bradbury memos) -- with appropriate redactions to protect sources and protocols, naturally -- why should Congress even consider negotiating FISA reform? Without such a modicum of respect and ordinary interbranch cooperation, why should the Senate even consider the President's judicial and DOJ nominees?

This is truly what Mark Tushnet has described as "constitutional hardball," and yet the legislature apparently is unaware that the game, like Congress itself, is being played.

Full post as published by Balkinization on February 08, 2008 (boomark / email).