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March|April 2005

Advice for Counsel

By Lincoln Caplan

WHEN THE OFFICE OF LEGAL COUNSEL issued a new opinion at the end of last year about interrogating prisoners, the Bush Justice Department replaced its notorious how-to memo on torture with a more scholarly analysis. The week before, however, a group of well-respected lawyers who served in the Clinton Justice Department released a set of guidelines for the OLC that were intended to help the office avoid a repeat of this sort of scandal. The guidelines are important not only for the thoughtfulness of their recommendations but because they suggest that the OLC has flouted fundamental principles of law.

In the original torture memo, the OLC justified inhumane treatment, but it also revealed the extent to which the office abused legal reasoning to excuse a policy of the president. It failed to reconcile the memo's conclusions with the classic Supreme Court decision setting limits on the president's power—a 1952 ruling that President Harry Truman's order to seize private steel mills during the Korean War was unconstitutional because Congress had refused to authorize it. The office also neglected the United States' duty to abide by international treaties that the president has signed.

Other evidence reinforces the conclusion that the OLC has dispensed with essential legal practices under President George W. Bush. In a memo asserting that the president has unbridled authority to use the military against terrorists, the OLC claimed that the opinions of previous administrations support its conclusion that the president can go to war without Congress's approval, even though not a single opinion does. Another OLC memo announced that the Bureau of Prisons' practice of placing inmates in halfway houses is no longer acceptable because it wasn't allowed by the relevant statute, a conclusion that each of the federal trial judges who has reviewed the opinion has found to be, as one put it, "contrary to the law."

It is often said that Congress makes the laws, the judiciary interprets them, and the executive branch enforces them—but each branch makes law by defining rules about how the government should act. The OLC's judgments in the form of written opinions about the obligations and powers of the president are treated as a body of law. Generally controlling because few are reviewed by judges, the judgments have been published in order to make the government's reasoning clear and to serve as precedent.

The OLC has long been among the most prestigious law offices in America. William Rehnquist and Antonin Scalia each led the office before going on the Supreme Court, for example. But the Clinton lawyers suggest that the respect the OLC has garnered in the past has been damaged by its overly aggressive policy agenda. Once revered as a legal adviser whose loyalty to the law also serves the president, the OLC has been turned into a zealous advocate that can no longer be counted on to help fulfill what the guidelines call the president's "constitutional obligation to ensure the legality of executive action." By making opinions with consequences in a result-oriented fashion, the OLC is operating contrary to "the Department of Justice's profound tradition of respect for the rule of law."

Of 10 guidelines proposed by the Clinton Administration lawyers, who were led by former OLC head Walter Dellinger and former acting head Dawn Johnsen, the first contains the heart of the advice. It says that the "OLC must provide advice based on its best understanding of what the law requires" and "not simply provide an advocate's best defense of contemplated action that [the] OLC actually believes is best viewed as unlawful." Another key guideline is that the OLC should disclose its written opinions as soon as possible, unless there are "strong reasons" not to. This recommendation was prompted by an unprecedented lack of disclosure of OLC opinions. Not counting 2001, when Bush was transitioning from Clinton's administration, the office has publicly released only 14 opinions in the past three years, compared with 106 in the parallel Clinton period from 1994 to 1996.

The guidelines contain no explicit criticism of actions by the Bush OLC. Instead, in deliberate, lofty language, they prescribe how the OLC should function under Republicans or Democrats based on practices "across time and administrations." While the bipartisan aspiration of the document is undercut by its having no Republican signatories, the Bush Administration's withholding of OLC opinions and its disregard for essential practices of legal reasoning put a burden of proof on the president's lawyers. Embracing the guidelines would be an affirmation of the Administration's commitment to the rule of law—a commitment that the OLC long embodied and now does not.

Lincoln Caplan is the editor and president of Legal Affairs.

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