The OLC Memos and State Secrets

Yesterday's release of some of the infamous OLC memos (the ACLU has requested 41 memos via FOIA) reaffirms just how dangerous the Cheney/Addington/Yoo unitary executive was--and is.

Scott Horton calls it George W. Bush's Disposable Constitution, which I'm quoting at length:

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

We need to know how the memo was used. Bradbury suggests it was not much relied upon; I don’t believe that for a second. Moreover Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it.

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is....

We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.

Horton's not alone in that characterization of the Bush "dictatorship." Legal professor Jack Balkin describes the memos as

...reasoning which sought, in secret, to justify a theory of Presidential dictatorship....

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 legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

What we know is that under the authority of this undoing of the Constitution, the Bush administration acted in at least three areas: torture, rendition, and illegal, warrantless surveillance. As Glenn points out, because of the dogged work of a handful of investigative journalists, civil liberties groups like the ACLU, Center for Constitutional Rights, and the Electronic Frontiers Foundation. It certainly wasn't the result of any effort by Congress to fulfill its checks and balances responsibility of executive oversight.

Chances are very good, as Horton says, that what we know now is the "least of it." The least of what we know argues forcibly for finding out more--for Congressional investigations, for Justice Department investigations, and for allowing the court cases that are now pending to go forward.

In releasing these documents, Attorney General Holder commitmed to openness: "Americans deserve a government that operates with transparency and openness," said Attorney General Eric Holder. "It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."

That commitment seems at odds with the "increasingly aggressive set of tactics," as lawyer/reporter Daphne Eviatar describes them, of the current DOJ to employ the same state secrets approach as the Bush administration in the Al-Haramain wiretapping case and in Mohamed v. Jeppesen Dataplan rendition case.

These cases rise out of the application of those deeply flawed OLC memos to actual policy. They are the outgrowth of the presidential dictatorship that existed for the past eight years, and the state secrets doctrine was what the Bush administration used to cover their tracks. It is part and parcel of the Cheney/Addington/Yoo construct of a unitary executive, and a dangerous tool for any administration to continue to use. This is not to equate Bush and Obama, and not to argue that Obama intends to be another dictatorial president. It's to say no president should be allowed to shield their activities from the courts just because they say so.

On this, I agree with Scott Horton again (with my additions):

Now it’s time for the truth to out. And for the Justice Department to take the energy it put into fending off a legitimate civil suit into honest-to-goodness law enforcement. Like prosecuting the people who cooked up and implemented the warrantless surveillance [and torture and rendition] schemes, including the conspirators at the Justice Department.

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For more on the memos, there are lots of sources, but you can start with various recent posts from Marcy, Christy, Jack Balkin, Orrin Kerr, Glenn, and Ars Technica.