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Newly-released OLC Memos Support Critics’ Claims

The Justice Department’s Office of Legal Counsel today released another slew of previously-classified legal memos, setting forth the department’s justifications for everything from the legality of the use of military commissions to try suspected terrorists to the authority of the president to use force against Iraq to the status of Taliban forces under the Geneva Conventions.

Needless to say, these are some hot-button legal issues that go to the heart of what the president has been doing over the last eight years in executing his “war on terror.”

Yet, you’d never know it from reading these memos. As I wrote in my recent piece about the Bush Justice Department, the lawyers chosen to lead the Office of Legal Counsel appear to have used their position not to explain to the president what the law is, but to provide him legal justification for doing precisely what he wanted to do all along.

Thus the newly-released OLC memos concluded that suspected Taliban and Al Qaeda detainees are “enemy combatants” who are entitled to no protection whatsoever under the Geneva Conventions or the U.S. Constitution — a position the Supreme Court has since repudiated; that the president has the authority to create military commissions that did not comply with the Geneva Conventions without the approval of Congress — also rejected by the Supreme Court; and that the president has the right of “anticipatory self-defense” against Iraq, even if the threat posed by Iraq isn’t all that imminent. (The possibility that Iraq might possess WMDs apparently makes the usual “imminence” requirement very squishy.)

Perhaps it was just sloppy lawyering, as former OLC director Jack Goldsmith said when he took over the office and criticized some of its opinions in his book, “The Terror Presidency”. But more likely it’s what critics like Dawn Johnsen, President-elect Barack Obama’s pick to head the OLC under his administration, have described as the tragic refusal of OLC lawyers to just say no to the president and vice-president — even when they were intent on disregarding the law.

As Johnsen told the American Constitution Society, “OLC and the Attorney General have to be prepared to tell the President ‘no’; that’s what the law requires.”

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