In the summer of 2004, the now famous “Bybee Memorandum” was leaked to the press. The memorandum, entitled Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A,^[1] was signed by Assistant Attorney General Jay S. Bybee but written by John C. Yoo, a lawyer at the Department of Justice’s Office of Legal Counsel (OLC) whose legal advice is now regarded as having facilitated the George W. Bush Administration’s broad exercise of executive power in the war on terrorism.^[2] The memorandum’s release, followed by the disclosure of other OLC opinions relating to questions about executive power, quickly sparked widespread debate not only about the wisdom and morality of the Administration’s policy, but also about the role of the OLC and its lawyers within the executive branch.

Both the federal government and the legal community have continued to struggle with the question of what the responsibility of government lawyers was in providing advice in response to the war on terrorism. In 2008, the Justice Department’s Office of Professional Responsibility (OPR) began an investigation into whether several OLC opinions (including the Bybee Memorandum), authorizing waterboarding and other controversial interrogation techniques, violated the professional standards that apply to Justice Department attorneys.^[3] Finally, in February 2010, the OPR released its 260-page report^[4] condemning the torture memos^[5] and recommending discipline for the lawyers who wrote them. Around the same time, Associate Deputy Attorney General David Margolis issued a memorandum for the Attorney General dismissing the OPR’s recommendation that Bybee and Yoo be referred to their state bar associations for professional discipline.^[6] Margolis rejected the OPR’s imputation of a “duty [on the part of OLC attorneys] to exercise independent legal judgment and to render thorough, objective, and candid legal advice,”^[7] arguing both that such a requirement was too stringent and that Bybee and Yoo had not been warned that they would be held to such a standard.^[8] Meanwhile, other members of the legal community have rejected Margolis’s conclusion, arguing that he “upped the burden of proof beyond what the ethics rules require”^[9] and that neither Bybee nor Yoo “behaved according to the high standards we should expect of government attorneys.”^[10]

These reactions echo the debate that has surrounded the torture memos for several years. Despite broad consensus within the legal community about the deficiencies of many of these memos, however, it is not immediately clear from the commentary whether or how the George W. Bush OLC (“Bush OLC”) departed from previous OLC practice—an inquiry that is important to understanding both how the Bush OLC’s decisions may have reflected institutional tradition and whether the authority of the office as a key executive legal adviser will be different going forward. The OLC exercises its opinion function, which has been delegated by the Attorney General since Congress created the office in 1933,^[11] in response to requests from the White House and executive agencies. Its opinions are viewed as binding throughout the executive branch^[12] and are regarded as having significant influence on presidential decision-making.^[13] At the same time, the OLC remains a lawyer for the President and the Attorney General—a role with the potential to lead to inappropriately politicized advice-giving. One scholar has identified the “central dilemma” of the OLC as its obligation to provide its clients with “advice and opinions they find generally congenial,” while simultaneously “upholding the reputation of the office as an elite institution whose legal advice is independent of the policy and political pressures associated with a particular question.”^[14] Concerns about the independence of the OLC as a legal adviser are therefore understandably well-rehearsed.^[15]

The broad purpose of this Note is to examine the OLC’s treatment of issues involving executive power since the advent of published opinions in 1977.^[16] More specifically, it will examine the extent to which the OLC’s response to the war on terrorism comports with an institutional tradition of promoting executive power.^[17] This inquiry is important for two reasons. First, the OLC is less likely to fall victim to political pressure from the President and his Cabinet when it exposes its opinions to public scrutiny; indeed, the Bush OLC’s extensive use of secrecy has commonly been criticized as contributing to its interpretive excesses. It is therefore important to understand the OLC’s use of secrecy during the war on terrorism in the context of a tradition of publishing important opinions. Second, focusing on opinions issued within the past three decades helps to focus the analysis on a conception of the presidency as it has developed in recent years. This is particularly important in light of a widespread conception of executive power as having been at a historically low ebb after Watergate and Vietnam in the mid-1970s.^[18] During the period ranging from President Carter’s sole term through President Clinton’s second term, the executive branch was consistently working to regain a more equitable place in the struggle for power among the branches—particularly during the Reagan Administration, when the concept of the unitary executive emerged.^[19] Discussing the Bush OLC opinions in this recent historical context is therefore “fair” in the sense that the executive was consistently seeking to regain its power during this period.

Part I provides a brief introduction to the debate surrounding some of the most controversial opinions issued in response to the war on terrorism. In Part II, a review of OLC memoranda issued during the past three decades suggests that the office’s tradition of promoting executive power has been especially evident in two contexts: (1) opinions regarding activities that are historically associated with core executive powers; and (2) opinions confronting legislative encroachments on such powers. Opinions issued by the OLC under the Bush Administration purported to be consistent with this longstanding tradition of pro-executive jurisprudence. Part III, however, concludes that the office’s opinions demonstrated a stark departure from opinions published under previous administrations in their heavy and ahistorical use of open-ended constitutional arguments, their disparagement of legislative power and dramatically narrow statutory construction, and their secrecy and after-the-fact approval of executive action. This analysis suggests that the opinions issued by the Bush OLC did not simply manifest a well-established pro-executive tradition, as Eric Posner and Adrian Vermeule have suggested.^[20] On the contrary, the way in which the OLC exercised its opinion function during the Bush Administration so transformed its role that the changes may prove to be irreversible.

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Stable PDF URL: http://yalelawandpolicy.org/sites/default/files/Saltzman_28.pdf

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^[1]Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002) [hereinafter Bybee Memorandum], available at
http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_20020...

^[2]For a discussion of the early uses of this term, see Bob Woodward, Bush at War 17, 45 (2002).

^[3]See, e.g., Dan Eggen, Justice Probes Authors of Waterboarding Memos, Wash. Post, Feb. 23, 2008, at A03.

^[4]Office of Prof’l Responsibility, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (2009) [hereinafter OPR Report], available at http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf

^[5]In addition to the Bybee Memorandum, the OPR Report discusses several other opinions regarding “enhanced interrogation techniques,” identified as the “Bradbury Memos” because they were signed by Principal Deputy Assistant Attorney General Stephen G. Bradbury in 2004 and 2005. Id. at 132.

^[6]Memorandum from David Margolis, Assoc. Deputy Attorney Gen., to Eric Holder, Attorney Gen. (Jan. 5, 2010) [hereinafter Margolis Memorandum], available at http://judiciary.house.gov/hearings/pdf/DAGMargolisMemo100105.pdf

^[7]OPR Report, supra note 4, at 11.

^[8]Margolis Memorandum, supra note 6, at 11.

^[9]David Luban, David Margolis Is Wrong, Slate, Feb. 22, 2010, http://www.slate.com/id/2245531

^[10]Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway, Posting of Jack Balkin to Balkinization, http://balkin.blogspot.com/2010/02/justice-department-will-not-punish-yo... (Feb. 19, 2010, 19:46 EST).

^[11]Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337 (1993).

^[12]Harold H. Bruff, Bad Advice: Bush’s Lawyers in the War on Terror 208 (2009); see also John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 428 (1993) (“The formality of the process and the product also allows the Office to appear to be more than simply another legal office within the government, but rather the oracle of executive branch legal interpretation.”).

^[13]OLC opinions have been credited with guiding Presidents in “many famous executive decisions.” Luther Huston, The Department of Justice 60 (1967).

^[14]McGinnis, supra note 12, at 422 (1993).

^[15]See, e.g., Harold Hongju Koh, Protecting the Office of Legal Counsel from Itself, 15 Cardozo L. Rev. 513 (1993); Symposium, In Memory of Rex E. Lee, 2003 BYU L. Rev. 1, 168-69.

^[16]Foreword, 1 Op. Off. Legal Counsel, at vi (1977).

^[17]See Eric Posner & Adrian Vermeule, Op-Ed., A “Torture” Memo and Its Tortuous Critics, Wall St. J., July 6, 2004, at A22.

^[18]See, e.g., Charlie Savage, Takeover: Return of the Imperial Presidency, 48 Washburn L.J. 299, 309 (2009).

^[19]See, e.g., Jeffrey Rosen, The Roberts Court and Executive Power, 35 Pepp. L. Rev. 503 (2008).

^[20]Posner & Vermeule, supra note 17.