Uncovering the Final Secrets of the Bush Administration

By Charles Homans, Washington Monthly. Posted December 1, 2008.

When Obama takes the reins in January, he will inherit the same bureaucratic apparatus Bush used, and with it the records of how he used it. This is the best opportunity for the new president to shine a light on the past eight years with the stroke of a pen. He should direct the government's inspectors general to undertake exhaustive, top-to-bottom audits of the classified documents their agencies have produced under Bush, declassifying and releasing everything for which secrecy isn't of demonstrable national security interest.

One specific trove of documents is a priority: the records of the Department of Justice's Office of Legal Counsel. The OLC is the executive branch's legal sounding board -- the president asks its staff whether something he or she wants to do is legal, and the OLC sends back an opinion explaining why or why not. OLC lawyers are in an unusual position, halfway between attorneys and judges. They give advice to the president, but that legal interpretation has a heft that gives government officials who follow it a degree of immunity -- "what is effectively an advance pardon for actions taken at the edges of vague criminal laws," Jack Goldsmith, the head of the OLC from 2003 to 2004, wrote in his 2007 book The Terror Presidency. "It is one of the most momentous and dangerous powers in the government: the power to dispense get-out-of-jail-free cards."

All presidents encounter legal gray areas at one point or another, and it was inevitable that the Bush administration would find many in its prosecution of the war on terror. But Bush and Cheney used the OLC in a novel and troubling way: instead of helping the executive branch fine-tune its plans to fit the law, the Bush OLC fine-tuned the law to fit its plans. Bush did not invite Congress to authorize its extended wartime powers (and it surely would have if he'd asked), as did Lincoln and FDR. Instead, the administration used the OLC to create a body of secret law. Like-minded OLC lawyers like John Yoo wrote opinions justifying wiretapping, interrogation techniques, and -- most importantly -- Cheney's and Addington's long-held belief that the president could declare law simply by virtue of being the president: the ultimate extension of the "unitary executive" philosophy, and the legal backstop to all of the administration's power expansions.

Many of the most important of these opinions remain classified. (Senate Judiciary Committee Chairman Patrick Leahy issued a subpoena for some of them in October, but as of this writing it has yet to be honored.) The next president should make them public for several reasons. One is that we have little idea what the legal justifications were for the illegal wiretapping program and what they are now for the interrogation of detainees. If the opinions that have been released -- which often hinge on citation-less assertions and dubious interpretations of precedent -- are any guide, the secret ones may be flimsy; Goldsmith retracted several during his brief tenure in the office. And because OLC opinions carry over to the next presidency, they will guide Obama's actions until new opinions tell him otherwise.

There are reasons to hope that Obama will be willing to release these documents. He has openly disagreed with the arguments made in some of the most controversial Bush OLC opinions, stating in an interview last December with the Boston Globe that he "reject[ed] the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments." On his campaign's Web site he pledged to create a National Declassification Center aimed at restoring sensibility to executive branch secrecy.

But regardless of what they've said on the campaign trail, incoming presidents tend to be deferential toward their predecessors in the matters of records -- they know they'll be in the same boat four or eight years down the road. Releasing and retracting the OLC memos is an even trickier proposition; the list of presidents who, if handed dramatically expanded executive powers, would voluntarily give them up is pretty short. Getting these concessions requires a combative Congress, which in the post-Gingrich era usually means a Congress run by a different party. It was easy for congressional Democrats to shake documents loose from Gerald Ford, a relic of a disgraced Republican administration, in 1975. It's doubtful they would take on an ascendant Democratic White House in 2009 with anywhere near the same vigor.

This, then, is a critical area in which both the Obama administration and the new Congress can earn our trust. If Obama wants to prove he really is a different kind of president, and if Congress wants to demonstrate in time for the 2010 elections that it can act tough alongside a Democratic executive, this is one way to do it.

Forget the subpoenas

Prodding Obama to release documents isn't Congress's only responsibility -- the heavy lifting in any serious investigative effort necessarily falls to the legislative branch, too. Executive branch investigations are usually worthless -- remember the Rockefeller Commission? I didn't think so -- and Obama has shown only lukewarm interest in mounting one. In April, he told the Philadelphia Daily News that while he would have his Justice Department investigate any evident criminal actions by the outgoing administration on the torture and wiretapping issues, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve." Most importantly, oversight is supposed to be Congress's job. The problem is, that's easier said than done.

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Charles Homans is an editor of the Washington Monthly.

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