Will Bush's Secret Legal Memos Be Released?

By Chisun Lee, ProPublica. Posted January 30, 2009.

OLC opinions on warrantless wiretapping could prove certain criminal or immigration proceedings to have been "tainted," says ACLU attorney Melissa Goodman. It is "impossible to tell" which of the withheld memos would be most revealing, but among those she is eager to see based on vague descriptions in government court papers: a Jan. 9, 2001, memo that seems to discuss the legality of the government's warrantless wiretapping program, and a Feb. 25, 2003, memo addressing the "potential use of certain information collected in the course of classified foreign intelligence activities."

Even if the Obama administration releases the Bush OLC memos, the clamor from critics is unlikely to end. Says Jameel Jaffer, director of the ACLU's National Security Program, the memos are important to seeking "accountability" for those who "purported to justify conduct that the U.S. once prosecuted as war crimes." Some scholars and advocates have called for investigation, if not prosecution, of the Bush OLC lawyers' role in what they call human rights violations.

The Justice Department's Office of Professional Responsibility is investigating the lawyering behind Bush interrogation policies for conduct falling below agency standards. NYU law professor Stephen Gillers, an expert on legal ethics and the discipline of lawyers, has said the interrogation-related OLC memos produced by Jay Bybee, who headed the OLC for two years until November 2003, and his deputy, John Yoo, "are an abysmal piece of work" and should be found deficient.

Asked yesterday to comment on the criticisms and investigation of his work, Yoo said, "I really cannot directly address your questions on the record." He said that pages 165 to 204 of his book, War by Other Means, spoke to these issues. (Bybee did not respond to a request for comment forwarded by a spokesperson for the U.S. Court of Appeals for the Ninth Circuit, where Bybee is now a judge.)

Two veterans of the OLC, from the Bush Sr. and Clinton administrations, have slammed Yoo and Bybee's critics. In a commentary for American Lawyer, Jeffrey Shapiro and Lee Casey wrote that the memo's authors properly answered the specific legal questions they were asked rather than expound on policy or morality. They called Giller's criticisms "personal" and "completely unpersuasive."

So far the Obama administration hasn't committed to disclosing the withheld memos, much less pursuing next steps. Attorney General nominee Eric Holder was circumspect when asked by Republicans on the Senate Judiciary Committee whether favorable OLC opinions would shield a government actor from liability. It would matter whether the opinion was "appropriately and in good faith drafted," he said in his confirmation hearings. If Holder is confirmed, as is generally expected, the OPR investigators will answer to him.

Johnsen has said, "Questions of atonement and remedy and prevention" can only be answered with "transparency [24] about the wrong committed" -- with "full disclosure."

See ProPublica's interactice chart of the Bush administration's still secret memos.

See more stories tagged with: war on terror, bush administration, barack obama, foia, aclu, department of justice, john yoo, jay bybee, eric holder, office of legal counsel, stephen bradbury, dawn johnsen, stephen gillers, jameel jaffer, torture memos, marty lederman

Liked this story? Get top stories in your inbox each week from Rights and Liberties! Sign up now »