Will Bush's Secret Legal Memos Be Released?
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Bush's arguments for confidentiality ranged from attorney-client privilege to " executive privilege" to the "deliberative process privilege" -- which protects free discussion among policymakers before a final decision is made -- to the attorney work-product privilege, which shields strategizing done by a lawyer for litigation purposes.
Johnsen herself has said that some OLC advice should not be disclosed. National security classification can be warranted, she said in a statement of OLC guiding principles co-published with other alumni (several returning under Obama) shortly after exposure of the so-called torture memo. To encourage agencies to seek to avoid unlawful conduct, she said, "OLC should honor a requestor's desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action."
But the presumption should be "transparency," Johnsen said, and exceptions should be construed narrowly. The Bush OLC's secrecy, said Johnsen, had disabled Congress and the courts from checking executive-branch "overreaching or abuses," for the simple fact that they "do not know what the executive branch is doing."
National security should trump disclosure only in "extreme cases," she told a Senate Judiciary subcommittee last April, and can be satisfied by limited redactions of "factual details" or "some delay." She will now have the chance to decide, with an insider's view of the stakes, whether the Bush administration's decisions to withhold made sense.
Besides being antidemocratic, some have argued, OLC secrecy is dangerous for practical reasons: It could permit conduct based on faulty premises. The August 2002 " torture memo" was among a number written around that time that were "deeply flawed" and "sloppily reasoned," according to Jack Goldsmith, who helmed Bush's OLC from October 2003 to June 2004 and then wrote a book about it.
Marty Lederman -- an OLC alumnus who is returning as Johnsen's deputy -- has said that had the memo been exposed to public scrutiny before it was leaked (and then rescinded) in 2004, "it would not have taken more than two years for the Office to make much-needed corrections."
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.)