Tuesday, April 28, 2009
Brian Tamanaha
President Obama said Tuesday that Justice Department officials who authorized harsh interrogation techniques are not immune from prosecution. "With respect to those who formulated those legal decisions," the president said, "that is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that." (NPR, April 22)
Many voices are now protesting that a criminal investigation of the OLC lawyers who wrote the "torture memos" would be unfair or improper. The President has already ruled out prosecution of the CIA interrogators who committed the torture (assuming they kept to the guidelines). There has been no hint that the Justice Department plans to investigate the high level officials who ordered the torture (Cheney, Rumsfeld, and company). At least for now, only the OLC lawyers are in the cross-hairs, while those who ordered the torture and those who carried it out breath easy.
It smells like the OLC lawyers are being served up as scapegoats for the bad deeds of others. They were just doing their job. They should not be punished for offering their good faith legal analysis. The fact that they were wrong about the law does not make them guilty of a crime. So say their defenders.
If an investigation into the actions of the OLC lawyers is about finding a scapegoat, it would be indeed be wrong. Let me explain, however, why the OLC lawyers must be investigated. Preview: It’s not about the torture. It’s about the special position of the OLC.
The role played by the Office of Legal Counsel within the Department of Justice is this: “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” (OLC website). The key words are “authoritative legal advice.” This quasi-judicial power—the power to issue legal opinions that bind the Executive Branch—is unique to the OLC.
Owing to this extraordinary power, the lawyers have a narrowly circumscribed charge and bear special responsibilities. Steven Bradbury spelled this out in a 16 May 2005 memo, Best Practices for OLC Opinions (which he issued just 6 days after he signed two pivotal “torture” memos). The pertinent passages read:
By delegation, the Office of Legal Counsel exercises the Attorney General’s authority under the Judiciary Act of 1789 to advise the President and executive agencies on questions of law….
Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch. Accordingly, it is imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned….
Over the years, OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers. This memorandum reaffirms the longstanding principles that have guided and will continue to guide OLC attorneys in preparing the formal opinions of the Office.
OLC’s interest is simply to provide the correct answer on the law....
That’s an excellent description of the OLC’s role, power, and responsibilities. These standards applied to the torture memos issued by Bybee, Yoo, and Bradbury. The OLC's very reason for existing is to issue independent, correct, legal decisions. The events surrounding the torture memos provide a perfect illustration of why it is essential that OLC lawyers strive in good faith to meet these standards.
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But Bush Administration higher-ups wanted the techniques to be applied. The OLC was called upon to issue legal opinions as a means to circumvent and squelch the opposition from military lawyers (never mind that military lawyers were more familiar than OLC lawyers with the techniques and the applicable law). When the OLC officially concluded that the techniques were “legal,” the opposition was silenced. Military lawyers were instructed to consider the “OLC memorandum as authoritative” (Senate Report 119-20), clearing the way for the techniques to become official policy.
The OLC has the power to trump opposing views on the law because, as described above, the OLC is the highest authority on the law within the Executive Branch. This is why OLC lawyers must live up to their duty to issue independent, thoroughly researched, soundly reasoned, correct legal opinions. The awesome power to issue binding legal opinions is easy to abuse.
With this background, it is easy to identify the flaw in David Broder’s recent
assertion that it would be wrong to investigate the OLC lawyers. Broder writes, “The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places -- the White House, the intelligence agencies and the Justice Department -- by the proper officials.”
Broder is wrong because the OLC lawyers were not asked for their opinion on policy. That lies beyond their charge. They were asked to render a legal opinion on the legality of the proposed use of the abusive interrogation techniques. If the policy was illegal, it was the job of the OLC lawyers to say “NO,” as Bradbury asserts in his OLC Best Practices Memo, “even when that advice may be inconsistent with the desires of policymakers.”
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In opposition to a criminal investigation of the OLC lawyers, Peggy Noonan
writes, “As for the memo writers, some of whose constitutional theories were apparently tilted to the extreme in favor of the executive, it is hard to see how it would help future administrations, or this one, to have such advice, however incorrectly formulated, criminalized.”
Noonan is absolutely correct that we must not criminalize erroneous legal advice. The key question here, however, is whether this was “just” bad legal advice, or whether it involved active participation by OLC lawyers in the violation of U.S. laws against torture. If the latter occurred, then a criminal investigation would help future administrations by serving as a reminder that the government must act within the limits of the law, and by reaffirming that it is the special job of OLC lawyers to make sure this happens. It is about deterring lawyers from facilitating lawbreaking at the highest levels of government.
That is why there should be a criminal investigation of the OLC lawyers. Lawyers have been held criminally responsible before (for example,
German lawyers after WW II, and tax lawyers who construct illegal tax shelters or write bogus opinion letters). It might be true that they did not knowingly facilitate a conspiracy to violate the federal anti-torture statute, and it might prove impossible to establish criminal intent on their part (email exchanges to and from OLC lawyers surrounding the production of the memos will shed light on this). They won't be prosecuted if either turns out to be the case. But we won't know the answers to these questions until after a criminal investigation has been completed.
A criminal investigation into the actions of the OLC lawyers is required not because our country has engaged in torture (as bad as that was). Ultimately, it’s about preserving the integrity of our system of law.
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