an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
These two memos were issued in the last days of the Bush Administration and they bear the signature of Steven G. Bradbury, the Acting OLC head from 2005 to 2009 and who wrote memos justifying many of the Bush Administration's detention and interrogation practices after the original torture memos were revealed and disowned. These two memos from October 2008 and January 2009 do not reverse the OLC's views about the legality of specific interrogation, detention and surveillance practices. What they do is to announce that the theories used to justify these practices are no longer taken seriously at the OLC and that executive branch officials should not rely on them. The October 6, 2008 memo disowns Yoo's secret October 25, 2001 memo which stated that if the government used the military to fight terrorism inside the United States, (1) the Fourth Amendment's ban on unreasonable searches and seizures would not apply to limit domestic military operations, (2) that the First Amendment's guarantees of speech and press might have to be subordinated to military necessity, (3) that the Posse Comitatus Act, which makes it illegal to use of the military for domestic law enforcement purposes, would not apply.
The January 15th memo is even more striking. It disowns statements made in a number of OLC memos (mostly authored by Yoo) made in the wake of the 9/11 attacks. It attempts to excuse these statements on the grounds that the OLC memos were issued under extraordinary circumstances and it notes that, in contrast to usual OLC practice, these memos offer broad hypothetical statements rather than responding to concrete situations. The January 15, 2009 memo insists that the OLC has not relied on these disowned statements of law since 2003.
First, the January 2009 OLC memo disowns the claim, made in several OLC memos, including the infamous torture memos, that the President has the sole power to decide on conditions of detention and interrogation of captured individuals and that any attempt by Congress to to interfere or regulate what the President does with persons he captures or detains (for example, through a ban on torture or an attempt to regulate military commissions) would be unconstitutional.
Second, the January 2009 OLC memo disowns the statement in previous memos that FISA should be interpreted as not restraining the President's ability to engage in warrantless domestic surveillance in order to avoid a potential conflict with the President's powers under Article II. These memos argued in effect that FISA would be unconstitutional to the extent that it prevented the President from disobeying its limitations on domestic surveillance.
These two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.
These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legalprecedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.
The January15, 2009 memo offers various reasons why these conclusions are incorrect and why they fail to take into account an abundance of legal materials-- including the text of the Constitution itself, which gives Congress the powers to regulate captures. All this might seem to suggest that the previous OLC memos were badly thought out and badly reasoned. Interestingly, however, the January 15, 2009 memo drops a footnote saying that neither this memo nor the October 6, 2008 memo "is intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."
The October 2008 and January 2009 memos are the Bush OLC's way of distancing itself from its conduct during the period when John Yoo was at OLC and when the Cheney/Addington/Yoo theory reigned supreme. It is important to recognize that these two memos are largely concerned with disowning particular broad claims of constitutional law, and they do not disown any of the Bush Administration's specific policies regarding surveillance, detention, and interrogation. Indeed, after John Yoo left the OLC the Bush OLC was able to justify many of these policies without the Cheney/Addington/Yoo theory, by arguing for example, that applicable legislation should be read very narrowly or that Congress had authorized what the Bush Administration wanted to do in the September 18, 2001 Authorization for the Use of Military Force. No one should confuse these memos with a reversal of Bush Administration policy-- instead, they are an attempt to disown a particular theory of unlimited Presidential power that was an embarrassment to the professional standards of the OLC. In this sense what is remarkable about these two memos is not that they change any concrete practices but that the OLC felt the need to reverse itself years later and to disavow a particular type of reasoning-- reasoning which sought, in secret, to justify a theory of Presidential dictatorship.