Balkinization

Now Is There Any Excuse for Not Disclosing the OLC Opinions?

Marty Lederman

The Administration has now publicly acknowledged that it used waterboarding, that it might do so again in the future, and that it has concluded that waterboarding is lawful, at least under certain circumstances (apparently, where it doesn't shock this Administration's conscience). Virtually the entire rest of the world, including, as far as I can tell, every legislator (both Democratic and Republican) who has spoken to the question, has concluded that waterboarding is categorically unlawful because, at the very least, (i) it is torture, prohibited by the torture act and Common Article 3, and the Convention Against Torture; (ii) it is cruel treatment, prohibited by Common Article 3; and (iii) it shocks the conscience, therefore violating Article 16 of the Convention Against Torture as well as the McCain Amendment.

The Department of Justice disagrees. And it has therefore authorized the CIA to engage in conduct that the rest of the world considers unlawful torture and cruel treatment. (In his testimony today, CIA Director Hayden euphemistically explained that the CIA uses such techniques -- which the FBI and DOD representatives testified are unnecessary for the collection of vital intelligence -- in order to get detainees "into a zone of interrogation.")

Yet DOJ will not disclose the legal basis for its unorthodox conclusions. I was shocked last week when Judge Mukasey told Senator Feingold that DOJ would not share with the Judiciary Committee -- even in closed session -- the legal explanations of why the "approved" CIA techniques are not unlawful. He repeated essentially the same thing to Representative Conyers yesterday. (Thanks to Paul Kiel for the video and transcript here.)

As I've argued here repeatedly, there is almost never any justification for the existence of what is, in effect, secret U.S. law about the limits of how or government can use force against individuals -- or of the existence of a "classified" law that departs so fundamentally from how the law is widely understood by the lawmakers and by the people. (Moreover, there should be a strong presumption in favor of making OLC Opinions public as a general matter. See Principle No. 6.)

But certainly where, as here, the underlying facts (and legal conclusions) are now acknowledged, and where there is such a stark and important contrast between the law as the public and Congress understands it and the law as the Executive interprets it, it is critical that the legislature and public be able to understand and evaluate the Administration's legal arguments.

Why hasn't the Department's audacity incensed more legislators? If the Administration will not even provide Congress, let alone the public, with a public accounting, and explanation, of how it is interpreting Congress's own enactments, we really are setting a new benchmark for the degradation of our system of meaningful checks and balances.

It's this -- not the failure to prosecute -- that should have Congress up in arms. Unless and until DOJ shares, and tries to defend, all of the relevant DOJ memos (including, of course, the John Yoo memo of March 2003 and the 2005 Bradbury memos) -- with appropriate redactions to protect sources and protocols, naturally -- why should Congress even consider negotiating FISA reform? Without such a modicum of respect and ordinary interbranch cooperation, why should the Senate even consider the President's judicial and DOJ nominees?

This is truly what Mark Tushnet has described as "constitutional hardball," and yet the legislature apparently is unaware that the game, like Congress itself, is being played.

Posted 5:59 AM by Marty Lederman [link]

Comments:

But Orin Kerr assured us that Mukasey was a good guy who believed in the rule of law! How could this happen?

# posted by

Matt : 9:31 AM

More to the point:

What's a guy got to do to get impeached around here?

# posted by

ADamiani : 9:40 AM

Marty,

I have to disagree with you on the key point -- "the degradation of our system of meaningful checks and balances" and "failure to prosecute" go hand in hand: the waterboarding is just one element of a much larger criminal conspiracy to commit war crimes and subvert the Constitution and laws of the United States generally.

And they MUST be prosecuted or the degradation of our government and laws will only get worse.

# posted by

Charles Gittings : 11:03 AM

i hope the imminent election of a democratic president will produce a little spine in congress.

bush needs to be run out of town on rails to prove a point and what better time than in a run up to the election of a democratic president. the gop is about as unpopular as its ever going to be in our lifetime. bush has been mired in nixon territory for the past year.

ol'hundred years in iraq' mac is going to get crushed by either hillary or obama.

and i agree with marty and sandy that the next president will have a historic opportunity to shape our future.

bush has almost singlehandedly trashed the republican party and conservative ideology.

bring on the investigations.

# posted by

Garth Sullivan : 2:09 PM

Adamiani:

What's a guy got to do to get impeached around here?

Get a consensual blow-job ... and be a Democrat. ;-)

Cheers,

# posted by

Arne Langsetmo : 3:14 PM

I'm sometimes baffled that Lederman, Balkin, et al can write so much that is so good about these issues without ever using the word "impeachment". It seems to me the principal remedy for the kinds of crimes against the people that the Bush administration has committed.

They have the kind of legal reputation the rest of us do not to make this argument -- acknowledging the risks of action and of inaction -- with their colleagues and with undecided or reluctant lawmakers. To do so would be a thunderbolt within the legal profession and specifically in the field of constitutional law -- a profession and a field that have abysmally failed us all so far, in this respect.

# posted by

Thomas Nephew : 6:24 PM

Not just every legislator who has ever spoken to the question, but also John Yoo himself, who said in a 2005 debate with Martin Flaherty at Fordham Law School that he believed waterboarding -- "putting someone in fear of imminent death" -- was torture.

Ironic that Yoo himself probably had a hand in writing those memos.

# posted by

Kadidal : 12:55 AM

The blame goes to the DOJ and to all of the offices that play a part in interrogation (DOJ, CIA, FBI, Pentagon, Homeland Security). All of these groups refuse to explain their justification for doing acts with no implicit justification.

If Drowning is considering torture, how is it ok to create that same experience in a different manner? It's just nonsensical

# posted by

Phelan : 3:51 AM

"Waterboarding" is MORE than just putting someone in "fear of imminent death," the technique goes way beyond that, you are physically NEAR imminent death [drowning] and then they "bring you back." Why don't they bring in someone who is experienced in the "technique" and have them do a demonstration, because anyone who has ever experienced it in military survival training knows that it is torture, pure and simple.

Mukasey played the "definition game" and the Dumb-asses on the Committee fell for it. They won't release their explanations because they are simply irrational continuums of the "unitary executive" crap.

# posted by

Don Rehkopf : 5:33 PM