Balkinization  

Wednesday, January 03, 2007

Our Secret Law of Interrogation

Marty Lederman

Patrick Leahy, the incoming Chair of the Senate Judiciary Committee, requested that the Department of Justice provide him with two documents: (i) President Bush's directive authorizing certain CIA interrogation methods and detention facilities located outside the United States; and (ii) the August 2002 OLC Memorandum to the CIA General Counsel explaining which interrogation techniques the CIA may and may not legally use. (Leahy also requested any other documents covering the same topics.)

Not surprisingly, the Department of Justice has denied that request. There are two basic grounds for the denial.

The first is that the Administration simply will not publicly reveal which techniques it considers lawful and which are unlawful--because the enemy must remain uncertain about what the legal limits are. The theory is that if Al Qaeda knows what is lawful and what is not, it will better be able to train its operatives to resist those techniques that are lawful.

As I've written previously, there is ususally very good reason for not disclosing information on exactly which tactics and methods the CIA has actually used on which detainees, and which techniques have been successful. Much of what the CIA does around the world is kept secret, at least in the short run. But I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques -- i.e., to have a secret law that the public and the Congress cannot know about. Here's what I wrote back in September:
[T]his argument [that we can't let Al Qaeda know what is legal and what's not] is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And . . . the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.


That is to say: If the public were to learn that the Administration considers waterboarding, or hypothermia, or sleep deprivation, legal, that knowledge would hardly assist Al Qaeda, because presumably they already are doing all they can to prepare their agents to withstand these well-known techniques, to the extent such resistence is possible. (The whole point of the extreme techniques, we had been led to believe, is that they are difficult if not impossible to resist.)

If, on the other hand, OLC has concluded that certain techniques are not lawful -- say, because they constitute "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions -- how would learning that information help Al Qaeda? Yes, it would mean that, as a practical matter, we could no longer terrify Al Qaeda detainees by threatening to use such techniques on them. But such a threat to use unlawful techniques would itself be unlawful, so that's no real loss.

There are many, many techniques and weapons of warfare that are known to be illegal -- that's the whole point of the laws of war and modern treaties, not to mention the Military Commissions Act itself and the new Army Field Manual: They all specify, in great detail, a long list of things that are off-limits, or even criminal, in warfare. There's no reason the CIA techniques cannot or should not be treated likewise. (Again, I might understand an exception for a technique that is both legal and not previously known. But I doubt the CIA is using many such "new" technqiues that have not previously been described in public sources.)

The second reason DOJ gives for not releasing the OLC advice in particular is "the Department's longstanding practice that non-public OLC opinions and memoranda involving involving . . . confidential advice are not disclosed outside the Executive Branch."

In part, this explanation is simply question-begging: The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

(The DOJ letter suggests that the congressional intelligence committees have been briefed, at least in general, about the CIA programs. But it's not clear that the intelligence committees have seen these and related legal documents. Moreover, presumably the intelligence committees may not share the information with their colleagues, without whom a legislative response would be impossible.)

Comments:

The two documents requested by the Committee could alternatively be branded the "Smoking Gun" and the FBI's reports disclosed yesterday desbribing more than two dozen *incidents* [ http://hosted.ap.org/dynamic/stories/D/DETAINEE_ABUSE?SITE=CADIU&SECTION=HOME&TEMPLATE=DEFAULT ] would admit the title of "Exhibits".

Other than that, I'm at a lack of words.
 

Is it not impossible by definition to determine if a new interrogation technique is legal or against the law if only the people using it are the ones who discovered it?
 

The proper Congressional oversight for classified activities are the Intelligence Committees, not the Judiciary Committee. It appears that the Intelligence Committees have been briefed on these interrogation methods. If the Intelligence Committees want more information, then they can ask for or subpoena it.

As for legal advice, the Congress can hire its own attorneys. They have no right to access to the legal advice given to the President. It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents.

In requesting the Executive disclose top secret interrogation methods and the legal advice given to the President, Leahy is simply playing a game of political gotchya by looking for dissenting opinions.
 

Punishment first, trial after.
 

Bart DePalma says:

"(...) It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents."

What I find truly amazing is the amount of time Bart DePalma spends on this blog spinning issues. The attorney-client privilege is, like any other legal privilege, subject to exceptions. An example, applicable in this case, is the crime-fraud exception, which can render the privilege moot when communications between an attorney and client are themselves used to further a crime or fraud (Clark v. United States, 289 U.S. 1, 15 (1933)).

In this case, could the Justice Department's OLC have acted in furtherance of a crime? I certainly believe so. Others, more qualified than me, do too:

http://www.ccr-ny.org/v2/GermanCase2006/Docs/Table%20of%20Contents%20for%20German%20Complaint.pdf
 

The proper Congressional oversight for classified activities are the Intelligence Committees, not the Judiciary Committee.

A corresponding argument would be that the relationship between executive branch directives and illegal activities undertaken by members of the USDA could only be subject to oversight by the Committee on Agriculture.

I see no reason why the Judiciary Committee can't be fully briefed in matters that involve compliance with US and international law.
 

Bart DePalma: The proper Congressional oversight for classified activities are the Intelligence Committees, not the Judiciary Committee. It appears that the Intelligence Committees have been briefed on these interrogation methods. If the Intelligence Committees want more information, then they can ask for or subpoena it.

Cite, please. I am not aware of any member of Congress even being briefed on the specific interrogation methods that have been used, let alone being privy to the documents in question. Even Sen. McCain, who along with Sens. Warnber and Graham took the lead in negotiating the relevant provisions of the recently enacted Military Commissions Act, said he did not know the specifics of how the administration has interpreted the law in the past. He has stated his own opinion -- that, for example, waterboarding is illegal under the language of the MCA, the Detainee Treatment Act and the Geneva Convention itself. But, as I recall, you have advanced the opposite opinion.

As for the question of committee jurisdiction, that is a political question determined wholly within the Senate. Since part of what is at issue is a federal criminal statute, Judiciary seems to me to be quite appropriately involved. That committee interest obviously overlaps with Armed Services and Intelligence.

If it is constitutionally valid for subpoenas of such information to be issued on behalf of Intelligence Committee oversight as you suggest, it is equally valid for subpoenas to be issued in conjunction with oversight by other committees. To whatever extent there is classified information that should not be made public, both Judiciary and Armed Services historically have handled secrets in closed session.

The key definitions of torture and cruel treatment contained in the MCA are amendments to the War Crimes Act (18 USC 2441), part of the U.S. criminal code, which is not at all limited to intelligence agencies. In fact, that act criminalizes conduct by any U.S. national anywhere against anyone, or by any person anywhere in the world if the victim of such illegal treatment is a U.S. national or a member of the U.S. armed forces. (The U.S. military also happens to be governed by the more clear-cut definitions in the DOD field manual.) If you as a private citizen go to Pakistan, capture Osama bin Laden and torture him, you may be prosecuted under the War Crimes Act.

BTW, similar questions of secrecy and privilege obtain in the NSA surveillance controversy. The administration so far has refused to divulge the either the contemporaneous or current OLC opinion(s) used to justify the domestic surveillance program. According to AG Gonzales, the rationale changed over time. And the FISA legislation has been handled both by the Judiciary and Intelligence committees, in both houses.
 

Who pays the salary of OLC attorneys? Is it the President, or is it me?

If the President wants legal advice that a co-equal branch of government cannot touch, he is free to hire a private attorney.
 

Who pays the salary of OLC attorneys? Is it the President, or is it me?

If the President wants legal advice that a co-equal branch of government cannot touch, he is free to hire a private attorney.


This cuts to the heart of the issue. There is no "attorney-client" privilege which applies to "political enemies". To the extent there is a privilege, it is held by the US government, not by any individual within the government (including the President). Congress being part of the US government, it is entitled to see the documents.

If there is any claim to be made here, it is executive privilege, not attorney-client.
 

randomopinion said...


Bart DePalma says: "(...) It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents."

The attorney-client privilege is, like any other legal privilege, subject to exceptions. An example, applicable in this case, is the crime-fraud exception, which can render the privilege moot when communications between an attorney and client are themselves used to further a crime or fraud (Clark v. United States, 289 U.S. 1, 15 (1933)).


Exactly who do you claim the CIA attorneys assisted Mr. Bush in defrauding?
 

PMS_Chicago said...

I see no reason why the Judiciary Committee can't be fully briefed in matters that involve compliance with US and international law.

This is an easy one. The more folks who know classified material, the more likely it is to be compromised. Given that Congress has proven to be a sieve when they think they can stick a partisan knife in a political opponent, the fewer in Congress who are privy to classified material the better.

I believe the Intelligence Committees are comprised of a bipartisan group of over 30 representatives and senators from a wide variety of ideological persuasions. This is adequate oversight to determine if the President is acting illegally.
 

jao said...

Bart DePalma: The proper Congressional oversight for classified activities are the Intelligence Committees, not the Judiciary Committee. It appears that the Intelligence Committees have been briefed on these interrogation methods. If the Intelligence Committees want more information, then they can ask for or subpoena it.

Cite, please. I am not aware of any member of Congress even being briefed on the specific interrogation methods that have been used, let alone being privy to the documents in question.


See the last paragraph of Professor Lederman's post.

As for the question of committee jurisdiction, that is a political question determined wholly within the Senate.

Actually, I believe that the Intelligence Committees were a product of negotiations between Congress and the Executive. This was a compromise between the Executive's concerns for operational security of the classified information and Congress' wish to provide oversight.

The Executive agreed to provide this information to one committee. In turn, the Intelligence Committee members undergo extensive background checks and agree to a variety of restrictions in order to gain access to this information.

If the Senate wants to unilaterally change the rules, then I would expect any President to tell them to take a hike.
 

Steve said...

Who pays the salary of OLC attorneys? Is it the President, or is it me?

You and I do not have ready access to classified material or an attorney's legal advice given to the President by virtue of the mere fact that we pay taxes. No one would give controversial or politically sensitive advice to the President if it would be splashed on the front page of the NYT the next day. The Courts have long recognized this fact of life in upholding executive and attorney / client privilege.
 

But it's not you or I asking for the information, it's Congress. They hold the privilege just as much as the Executive Branch does. You know this, I suspect, which is why you feel obligated to duck the issue.
 

Bart,

I already did read the last paragraph of the post, which does not say what you seem to imply. A "general" briefing is by definition not specific; and the paragraph expresses doubt that the legal documents in question were revealed to the Intelligence Committee at all.

You do not address the core point of my comment, which is that the language of the statute is not limited to behavior of intelligence agencies. These statutes are applicable to everyone, and OLC opinions presumably apply to the entire executive branch.

Once again, the language of the statutes is so general that neither Congress nor the public can know what it means. You provide a case in point. While Sen. McCain reads the language he negotiated and says it prohibits waterboarding, for example; you read the same language and say it does not. Since the Judiciary Committee is responsible for the criminal code, it is perfectly appropriate for its members to know if the executive is adhering to congressional intent, so they can understand whether less ambiguous language is needed.

OLC does not have responsibility for defining intelligence policy, but it does have responsibility to define what is legal. An OLC memo thus would not disclose what intelligence agencies actually do, it would only outline the boundaries of what responsible DOJ lawhers say the law permits.

There also may be significant legal issues that trancend any specific interrogation practices. If, for example, OLC memos secretly assert a general Article II power to ignore certain statutes -- as similar powers have been asserted in related fields, however disengenously -- that would be a hugely controversial legal theory, not a matter of classified facts. It may well be that if OLC's theory were exposed to public and congressional scrutiny, the adminstration would be shamed into disavowing it, as it was with the infamous Bybee torture memo.
 

Let's not take our eyes of the ball here: The president received advise on the legal limits on interrogation: ie where interrogation stops and torture begins. Regardless of executive privilege or which committee can get what classified information.

We should be discussing why Bush does not want to share this advise. If we can make him is a less interesting question.
 

Steve said...

But it's not you or I asking for the information, it's Congress.

Steve, you raised the issue of your access to the legal advice given to the President based on the fact that you were a taxpayer. I just answered your point.

They hold the privilege just as much as the Executive Branch does. You know this, I suspect, which is why you feel obligated to duck the issue.

The client (in this case the President) possesses the privilege, not a third party who may be paying my fee. I have to pay close attention to this distinction when I am paid by an insurer to represent an insured. The insured is my client, not the insurer.
 

JaO said...

Bart, I already did read the last paragraph of the post, which does not say what you seem to imply. A "general" briefing is by definition not specific; and the paragraph expresses doubt that the legal documents in question were revealed to the Intelligence Committee at all.

Neither one of us knows the extent of the briefing given to the Intelligence Committees concerning interrogation methods. That is why I added my second comment that the committee can ask further questions, by subpoena if necessary.

As to the documents, the Committee could probably get access to the Presidential directive, but I doubt the President would provide Congress a memorandum of the legal advice he had received.

You do not address the core point of my comment, which is that the language of the statute is not limited to behavior of intelligence agencies. These statutes are applicable to everyone, and OLC opinions presumably apply to the entire executive branch.

Perhaps I could have made myself clearer, but I responded while wolfing down lunch between court appearances today.

The point I was attempting to make is that I believe that the Executive and the Congress entered into a negotiated deal that the Executive would provide classified material to the Intelligence Committees to conduct oversight.

I do not disagree with you that other committees might normally have jurisdiction under the rules of that body over some of the subject matter which is classified. However, I believe by virtue of the fact that the material is classified, the jurisdiction shifts to the Intelligence Committees.

There also may be significant legal issues that trancend any specific interrogation practices. If, for example, OLC memos secretly assert a general Article II power to ignore certain statutes -- as similar powers have been asserted in related fields, however disengenously -- that would be a hugely controversial legal theory, not a matter of classified facts. It may well be that if OLC's theory were exposed to public and congressional scrutiny, the adminstration would be shamed into disavowing it, as it was with the infamous Bybee torture memo.

The Congress is not a bunch of helpless potted plants. They can make their own determinations about whether an Executive act or omission is legal or not. Such a determination never was the goal of Leahy's request for these memos.

Here is how the game is played. Congress does not want to take a stand on the legality of many of these issues and open themselves up to political attack. Rather, they wish to attack the President through guilt by association with the persons giving him advice (See the requests for information concerning Cheney Oil Task Force ) and/or attack the President by pointing out dissenting advice the President received and then complain that the President ignored the advice such and such "career professional." (See the fiasco known as the review of pre war intelligence).

None of this has to do with changing policy or forging new policy. It is all attack politics.
 

Bart,

So your position is that if the Intelligence Committee asks for the same documents Leahy did, the administration should comply with the request?

Are the OLC legal opinions themselves even classified? I see nothing in the DOJ letter that says so.

The oversight involved is not just oversight over the CIA, but also oversight of the Justice Department. That is a Judiciary Committee responsibility, and if OLC is issuing opinions that undermine statutes, the Judiciary Committee should be probing this. Your labeling of oversight as "attack politics" is just meaningless name-calling.
 

JaO said...

Bart, So your position is that if the Intelligence Committee asks for the same documents Leahy did, the administration should comply with the request?

If I were President, I would provide a copy of the executive order, but not all the different legal advice that I had received. Instead, I would provide the legal reasoning which I decided to adopt to support my order. Any different or contrary advice which I received is none of Congress' business.

If the Intelligence Committees do not accept my legal rationale, let them offer alternative legislation, cut off funding for my activities or file articles of impeachment.

However, Congress does not want to take actual responsibility and act affirmatively to change current policies because that would expose them to political criticism. As I pointed out before, they are content to lay low and snipe in a cowardly game of political gotchya.
 

The client (in this case the President) possesses the privilege, not a third party who may be paying my fee.

Even after I pointed out that you were dodging the question, you come right back and dodge it again! If you had a shred of intellectual honesty, you'd admit that the President cannot assert attorney-client privilege to keep OLC advice from Congress, no matter how much you love the President and hate the majority party in Congress.

You should probably quit posting on a legal blog and stick to someplace like Powerline where your breed of dishonesty is par for the course.
 

Prof Lederman said [from the post]:

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

This is the single stongest and most unarguable reason why the executive recalcitrance here is inexcusable and unlawful.

I'd point out that this issue of "oversight" hasn't really come to a head before (except perhaps in the Nixon maladministration and its aftermath), but that's because no administration prior to the Dubya maladministration seems so intent on ignoring wholesale the laws passed by Congress. Time to kick some butt and start taking names....

Cheers,
 

"tanker" said:

Is it not impossible by definition to determine if a new interrogation technique is legal or against the law if only the people using it are the ones who discovered it?

Does a tree fall in the forest if no one can hear it scream?

Cheers,
 

"Bart" DePalma:

The proper Congressional oversight for classified activities are the Intelligence Committees, not the Judiciary Committee.

"Yep, written right into the Constitution there ... ummm, yeah, there ... ummm, yeah, I thought I saw it there, waiddaminnit, get right back to you......"

If the Intelligence Committees want more information, then they can ask for or subpoena it.

Dontcha worry, "Bart", subpoenas are coming.

As for legal advice, the Congress can hire its own attorneys. They have no right to access to the legal advice given to the President.

Betcha dollar to donuts "Bart" sang a different song in the 90's....

It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents.

One I can think of was named "Starr". He lost the big one there, FWIW, and I had argued (published on the LTTE page of the N.Y. Times) against Starr's usurpations. I doubt that "Bart" did the same, so I suspect his sudden respect for ACP is of relatively recent provenance. IOKIYAR, you know. But then again, Starr was doing the important work of sniffing through people's panties, rather than looking into whether the laws of Congress were being obeyed.

In requesting the Executive disclose top secret interrogation methods and the legal advice given to the President, Leahy is simply playing a game of political gotchya by looking for dissenting opinions.

There's two hundred million "dissenting opinions". No shortage there. What Leahy's looking for (amongst other things) is whether Dubya is intentionally violating the law.

Cheers,
 

"Bart" DePalma:

[pms_chicago]: I see no reason why the Judiciary Committee can't be fully briefed in matters that involve compliance with US and international law.

This is an easy one. The more folks who know classified material, the more likely it is to be compromised. Given that Congress has proven to be a sieve when they think they can stick a partisan knife in a political opponent, the fewer in Congress who are privy to classified material the better.


"Bart"'s been listenting to Hannity (or the echo chamber's repeats of the meme du jour) here. But the response is easy: Point out the part in the Constitution that says (with "plain meaning") that the executive is exempt from Congressional oversight when they're (allegedly) shown t be leaking like a sieve. I'd say that, given the source of most of the "leaks" of "classified material" in recent years, perhaps we ought to make Dubya's motto "Impeach me before I leak again". You know, start withholding secret information from Dubya and his cohorts.

Cheers,
 

"Bart" DePalma says:

If I were President, I would provide a copy of the executive order, but not all the different legal advice that I had received. Instead, I would provide the legal reasoning which I decided to adopt to support my order. Any different or contrary advice which I received is none of Congress' business.

Ahhhh. Here's we're getting to the nub of the matter (and to Anne's question). "One word, Ben. One word: Intent."

Cheers,
 

Thanks, Bart. I will be looking forward with interest to see if President Bush takes even the limited steps you outline to inform Congress about his executive order and the legal rationale for it. I have no confidence there will be any such cooperation.

However, even such hypothetical cooperation would leave the Justice Department's performance untouched by oversight. In my opinion, the questionable lawyering that has occurred there with regard to "war on terror" issues -- abdicating OLC's traditional mission of providing objective advice in favor of rationalizing whatever policies the White House wants to adopt -- is badly in need of scrutiny.
 

JaO said...

However, even such hypothetical cooperation would leave the Justice Department's performance untouched by oversight. In my opinion, the questionable lawyering that has occurred there with regard to "war on terror" issues -- abdicating OLC's traditional mission of providing objective advice in favor of rationalizing whatever policies the White House wants to adopt -- is badly in need of scrutiny.

jao, if you are game, let's take your suggestion a bit further.

Based on what has been leaked or released to date, it appears that the President has received a variety of often contradictory legal advice from Justice attorneys on the scope of the Presidential powers which he has exercised during this war.

The fact that the legal opinions given by Justice are conflicting is unsurprising since many of the issues addressed are unsettled by the courts and precedent. You and I may agree with some and disagree with others just as we have differing personal opinions.

Now, let us postulate that the President waives his executive and attorney / client privileges and allows all the attorneys who provided advice to testify in front of Senator Leahy's committee.

Are you suggesting that Congress somehow sanction Justice attorneys or Justice itself for the thought crime of providing legal opinions with which a majority of Senators disagree?

Apart from making it very unlikely that any Justice attorney will give controversial advice in the future, what would you hope to accomplish with such sanctions?

If not to deal sanctions, what is the purpose of conducting the hearings?

If the purpose is simply to gather legal advice for future legislation, Congress may bring in any attorney inside or outside of the Executive and simply ask their opinions without trolling through what advice was given to the President.
 

Bart,

I am not suggesting sanctions beyond the normal and constitutional prerogatives of Congress. But merely by providing transparency within the framework of our democracy, oversight can be its own remedy.

Whatever "sanctions" result may take the form of political action on the part of senators, you, me, and everone else, all acting within the scope of our civic roles. There may be professional revulsion about the content of some specific opinion -- the Bybee "torture memo" being a good example. In that case, if the memo had been disclosed in a more timely fashion, it is quite possible that Jay Bybee would not have been confirmed to his current lifetime job on the bench; or perhaps he would have been. That would have been up to senators exercising their constitutional role of advice and consent. I wish they had had the record available to them to weigh.

Cumulatively, when there is more than one such example of questionable lawyering, that says something to all of us about whether we trust this adminstration to "see that the laws be faithfully executed," and we can take whatever political action we see fit.

You implicitly reject the legitimacy of such oversight by labelling it attack politics." Once again, I say that is just name-calling. Oversight is oversight, and there is nothing inherently illegitimate about it. To the contrary, it is laudable and important in our system of government.

Aside from the red herring of "classified" secrecy -- which in this case properly pertains to actual practices and policies of the CIA, not to OLC legal opinions about what the boundaries of such practices are -- I can see little justification for keeping OLC opinions secret. OLC opinions do carry the weight of law within the executive branch, and secret opinions are a form of secret law.

You seem to be arguing that no OLC opinions should be published. In fact, many or most are.
 

I'm amazed that no one has yet called Mr. DePalma on this outrageous misstatement of black letter attorney-client privilege law, so I will pick up the ball and run with it.

Mr. DePalma said:

randomopinion said...


Bart DePalma says: "(...) It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents."

The attorney-client privilege is, like any other legal privilege, subject to exceptions. An example, applicable in this case, is the crime-fraud exception, which can render the privilege moot when communications between an attorney and client are themselves used to further a crime or fraud (Clark v. United States, 289 U.S. 1, 15 (1933)).


Exactly who do you claim the CIA attorneys assisted Mr. Bush in defrauding?


This isn't even a good try. This is, in fact, two misstatements in one -- one factual, one legal.

First, OLC lawyers are not "CIA attorneys." The CIA has its own counsel's office. OLC is part of DOJ.

Second, your reframing of the issue raised by randomopinion is (to be charitable) disingenuous. As you must know, no one is suggesting that OLC legal advice is stripped of any otherwise applicable privilege because it was was given with the understanding or intent that it would be used in furtherance of a fraud. Rather, the suggestion is that the legal advice in question is not privileged because it was given with the understanding or intent that it would be used in the commission of a crime.

There may or may not be a clear answer to that legal question. What is clear, however, is your continuing inability or unwillingness to engage in principled discussion of issues.

Shame on you, sir.
 

He has no shame.
 

"Bart" DePalma tilts at the windmills of his mind:

It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents.

Yes, it truly is amasing. Why, if you total up the number of attorneys ere that "argue for abolishing the attorney client privilege enjoyed by political opponents", it comes to ... give me the tally sheet there, Fred, yes, the grand total is ... ummm, zero?!?? Well, howdydoody, "Bart" is delude once again....

Unless, of course, dear ol' "Bart" here was counting himself, perhaps after having urged that Vince Foster's personal client files ought to be divulged to Grand Inquisitor Starr. Fortunately for those of us that believe that ACP should not be gutted in pursuit of actual political witch-hunts, Starr's way didn't hold sway, and the Supreme Court told him to take a hike.

Cheers,
 

Bart:

The lawyer-client privilege does not shield disclosure of OLC memos to Congress because the President is not the OLC's client. The government is. A congressional committee is an arm of that same government.

If the President decided to hire personal lawyers and seek advice from those lawyers regarding whether authorizing particular interrogation tactics would result in civil or criminal penalty, of course that legal advice would be privileged against disclosure to Congress.

But the Justice Department is not the President's personal law firm on retainer; it represents the United States government. The request by another arm of its client for information is not barred by privilege.
 

burnspbesq said...

I'm amazed that no one has yet called Mr. DePalma on this outrageous misstatement of black letter attorney-client privilege law, so I will pick up the ball and run with it.

Bart DePalma says: "(...) It is amazing how many attorneys here and elsewhere argue for abolishing the attorney client privilege enjoyed by political opponents."

randomopinion said... The attorney-client privilege is, like any other legal privilege, subject to exceptions. An example, applicable in this case, is the crime-fraud exception, which can render the privilege moot when communications between an attorney and client are themselves used to further a crime or fraud (Clark v. United States, 289 U.S. 1, 15 (1933)).

Bart DePalma says: Exactly who do you claim the CIA attorneys assisted Mr. Bush in defrauding?

This isn't even a good try...your reframing of the issue raised by randomopinion is (to be charitable) disingenuous. As you must know, no one is suggesting that OLC legal advice is stripped of any otherwise applicable privilege because it was was given with the understanding or intent that it would be used in furtherance of a fraud.

Rather, the suggestion is that the legal advice in question is not privileged because it was given with the understanding or intent that it would be used in the commission of a crime.


My friend, before you accuse me of misrepresenting the law, you may want to actually read the case cited by randomopinion, which deals with attorneys actively assisting a fraud. Thus, my retort asking for evidence that Mr. Bush's attorneys were assisting him in perpetrating a fraud.

Since you have decided to pick up the gauntlet for randomopinion and change his argument, exactly how do you claim that this legal advice advanced a crime?

It is not a crime for an attorney to opine that an action does not violate the law only to have another attorney or a court later disagree. Otherwise tens of thousands of attorneys would now be in prison.
 

Dilan said...

Bart: The lawyer-client privilege does not shield disclosure of OLC memos to Congress because the President is not the OLC's client. The government is. A congressional committee is an arm of that same government.

We disagree.

In In re: Grand Jury Subpoena Duces Tecum, the 8th Circuit noted that the Federal Rule of Evidence 503 recognized a governmental attorney client privilege. Furthermore, the 8th Circuit analogized the government attorney client privilege to the executive privilege:

[The Supreme Court in the Nixon case] recognized that the need for confidential presidential communication “can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties” and that the privilege for presidential communications “is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. (Citations omitted).

As did the Supreme Court in the Nixon case concerning the executive privilege, the 8th Circuit only made an exception to the governmental attorney client privilege for subpoenas seeking evidence possessed by the government attorney necessary for a criminal investigation.

In contrast, the 8th Circuit appeared to recognize the validity of an attorney client privilege for advice given by the AG to the President. See Memorandum for the Attorney General re: Confidentiality of the Attorney General's Communications in Counseling the President, 6 Op. Off. Legal Counsel 481, 490-97 (1982).

Senator Leahy is not running a criminal investigation and does not allege that the attorneys at issue possess evidence of criminal wrongdoing by the government. Rather, Leahy is seeking access to the legal advice given to the President.
 

Bart:

You are overreading that case. Yes, there is an "analogy" between executive privilege and lawyer-client privilege, in that both protect confidential deliberations. No, that doesn't mean that the President, rather than the government, is the "client".

There is NO authority recognizing that the Justice Department serves as the President's personal lawyers. Indeed, this is why when Presidents have legal problems, they hire private lawyers rather than seeking the advice of the Justice Department.
 

In sum, I think Mark Field got it right in his comment above. As far as congressional access goes, controversies such as this will turn on questions of executive privilege. The attorney-client issue is a red herring.

And since it will be Congress, not the judiciary, seeking access to such information from the executive, the outcomes will depend primarily on political will. The maneuvering is just beginning.
 

Dilan:

If the President decided to hire personal lawyers and seek advice from those lawyers regarding whether authorizing particular interrogation tactics would result in civil or criminal penalty, of course that legal advice would be privileged against disclosure to Congress.

But the Justice Department is not the President's personal law firm on retainer; it represents the United States government. The request by another arm of its client for information is not barred by privilege.


During the Starr Inquisition, in fact, that's precisely what the Republicans argued in seeking Clinton's communications with the White House lawyers, and IIRC, they got their wish. It's when Starr over-reached and tried to get Clinton's parsonal files from Vince Foster's records that the Supes slapped his silly face.

Cheers,
 

"Bart" DePalma is hard of reading:

[Bart DePalma]: Exactly who do you claim the CIA attorneys assisted Mr. Bush in defrauding?

[burnspbesq]: ... no one is suggesting that OLC legal advice is stripped of any otherwise applicable privilege because it was was given with the understanding or intent that it would be used in furtherance of a
fraud.

Rather, the suggestion is that the legal advice in question is not privileged because it was given with the understanding or intent that it would be used in the commission of a
crime.

My friend, before you accuse me of misrepresenting the law, you may want to actually read the case cited by randomopinion, which deals with attorneys actively assisting a fraud. Thus, my retort asking for evidence that Mr. Bush's attorneys were assisting him in perpetrating a fraud.


Before "Bart" shoots his mouth off, he ought to actually read what "burnspbesq" wrote....

"Bart" pretends (contrary to law) that only "fraud" will pierce the veil of ACP.

Aside from that, "Bart" didn't "ask[] for evidence that Mr. Bush's attorneys were assisting him in perpetrating a fraud". He asked "who" it was that "burnspbesq" had "claim[ed]" had committed a fraud. Obviously, "burnspbesq" hadn't made any such claim, and "Bart"'s asking "who" is a question akin to "when did you stop beating your wife". That is to say, a "red herring". Rank dishonesty on the part of "Bart" once again. In other news, the sun rose in the east today....

Cheers,
 

During the Starr Inquisition, in fact, that's precisely what the Republicans argued in seeking Clinton's communications with the White House lawyers, and IIRC, they got their wish.

The case was In Re Lindsey.
 

Mark Field:

The case was In Re Lindsey.

Thanks for the link. Wrote that in the airport; no real time for much digging.

Cheers,
 

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