opinion

The gap
by Nicholas M. Jackson

Now that the holidays are over, it's time to get back to business --- pay off our credit card bills and otherwise account for our past excesses. Let's begin by looking at some excesses committed in our name by US government officials.

On June 19, 2007 the acting CIA general counsel, John A. Rizzo, was quoted in the New York Times as asserting that the agency's interrogation program was "necessary, lawful and in the best interests of the United States." Similarly, CIA Director Michael V. Hayden echoed claims of legality of the CIA interrogation programs in an October 30, 2007 speech before the Chicago Council on Global Affairs. And after the New York Times revealed that the CIA had destroyed interrogation videotapes of Abu Zubaydah and another "high-value" detainee, Hayden sent a December 6, 2007 damage control letter to CIA employees. The CIA director contended the agency originally made the videotapes to ensure employees acted in accordance with "established legal and policy guidelines."

Just what did these high-level CIA officials mean by "lawful" or "legal?" To answer that question, one must trace the history of policies Congress established for the executive branch to stay on the right side of the law.

One of the first congressional tasks after the United States came into being under the Constitution was to cooperate with the Supreme Court in setting up a system of courts under Article III. Since the United States inherited the common law and much of its judicial template from England, it generally was accepted that the new American federal courts retained inherent power to make rulings as to which activities were legal under the common law or statutes passed by Congress. It was not until the US Supreme Court's 1803 landmark case of Marbury v. Madison, that the judiciary definitively established itself as the final authority on what statutes were constitutional.

But what if the statutes and the Constitution were silent or ambiguous about an emerging issue requiring a president's attention?

The problem arose because federal courts could not take cases until there was a controversy generating a lawsuit. US federal courts are prevented from issuing advisory opinions under the constitutional framework. Thus it could be years after a president or an executive branch agency issued an order or instituted a program before a court might ever have an opportunity to rule on the legality of the chosen course of action. How would a president avoid the risk of having an established program destroyed by a court ruling? What measures could a president take to predict eventual court approval of programs that might not be challenged in a lawsuit until decades after such programs were long-established, relied upon by constituents, and funded by the taxpayers? Congress created a solution.

Shortly after the US Constitution went into effect, Congress passed the Judiciary Act of 1789 during its first session. Section 35 of this Act provided for establishment of the Office of Attorney General, to be filled with "a meet person, learned in the law" and charged with giving "advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments."

This is how the "gap" was to be filled between the time a president or the executive departments wanted to conduct proposed activities and when the courts might rule on the legality of such activities. Bearing in mind that a president is also charged under Article II, Section 3 to take care that the laws are faithfully executed, this gap was not intended to serve as a free pass for presidents to undertake questionable activities until stopped by adverse court rulings.

Over the centuries since 1789, the office of the president and the executive departments grew to massive proportions with countless federal programs and seemingly unfathomable budgets. Yet, the Attorney General always retained a charge to give legal advice to presidents and the executive departments.

Currently, the Attorney General is authorized to give "advice and opinion on questions of law when required by the President" by 28 USC, section 511 and to give legal advice to heads of executive departments under 28 USC, section 512. Because the legal advisement needs of federal bureaucracy are too large for the Attorney General to single-handedly address, the day-by-day task of issuing formal and informal legal opinions is delegated to the Department of Justice's Office of Legal Counsel (OLC) under the regulatory authority stated at 28 CFR, section 0.25.

For example, the OLC serves as outside counsel for the other agencies of the executive branch and also functions as general counsel for the Justice Department. All executive orders and proclamations proposed to be issued by the president are reviewed by the OLC for form and legality, as are various other matters that require the president's formal approval. Additionally, the OLC reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval. Most importantly, the OLC normally is delegated responsibility for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

It has been said that the OLC operates as a "mini-Supreme Court" to provide a high level of legal scholarship and legal advice that can pass constitutional muster, should a presidential decision or executive branch policy be challenged in the federal courts. Traditionally, the predictive value of OLC rulings has been so high as to fall under a presumptive aura of legality and constitutionality.

It is not surprising that the attorneys who draft formal OLC memoranda of law or otherwise issue informal legal advice to the executive departments hold highly regarded credentials. These attorneys typically will have graduated from the "best" law schools, may have served a clerkship at the US Supreme Court, or may have taught constitutional law as a professor at one of the nation's law schools.

There is a mechanism for attempting to maintain the ethical purity and independence of OLC legal advice. The three prongs of this mechanism are: (1) the confirmation process of political appointees before the US Senate; (2) the oaths of office the OLC attorneys previously took as licensed attorneys and take as federal appointees, and (3) the rules of professional responsibility for the various jurisdictions where these attorneys are licensed to practice law. Theoretically, political appointees at the Department of Justice will behave ethically and with the independent legal judgment necessary to the position.

Thus, in a normally functioning US Department of Justice, lawyers for the OLC typically are competent to give the same quality of legal advice to executive branch clients that lawyers serving clerkships at the US Supreme Court can give to Supreme Court Justices.

One of the procedures the Bush administration corrupted in the "war against terrorism" is its use of legal opinions from the US Department of Justice. By recruiting law professors, such as John Yoo and Jay Bybee, for the OLC, President Bush was able to get authoritative-looking Justice Department opinions that authorized torture, illegal wiretapping, and international kidnapping. Justice Department legal opinions have the force of law for all executive branch departments until a federal court definitively contradicts such opinions or a federal statute expressly outlaws what Justice Department attorneys previously declared. What OLC's Bush-era legal opinions did was give legal cover for CIA operatives, phone companies, Internet service providers and military interrogators as they engaged in activities directly contrary to published statutes and US Senate-ratified treaties. We should realize that most people who carried out Bush's questionable "programs" do not face prosecution under US law. This is so because they have a strong argument that they were following orders certified as legal at the highest level of government --- the legal "scholars" at OLC. If a court eventually rules some aspect of the Bush surveillance, detention and interrogations programs illegal, some individuals carrying out OLC-approved practices can reasonably assert they had no way to foretell how a court was going to rule in the future.

But OLC Lawyers such as John Yoo and Jay Bybee cannot claim immunity from prosecution because they simply "gave advice" to the president. Their legal advice, as brokered to President Bush by former White House Counsel and Attorney General Alberto Gonzales, fails the ethical standards of the legal profession and runs afoul of existing and clearly understandable criminal statutes.

No, their criminal liability is distinguishable from that of lower-level functionaries who carried out the orders. Yoo had been a law professor at University of California at Berkeley, while Bybee had been a law professor at both Louisiana State University and the University of Nevada at Las Vegas. Gonzales had been a Texas Supreme Court Justice before he followed George W. Bush to Washington. Yoo was a graduate of Yale Law School, while Bybee studied at the J. Reuben Clark Law School at Brigham Young University. Gonzales was a graduate of Harvard Law School. With such credentials, these attorneys came to federal service with a high presumption of competence.

But the kind of "legal advice" these men crafted for their president was not based either on existing law or good faith arguments for change or modification of existing law. There was no ambiguity in the statutes or the Constitution. Their legal advice went against explicit statutory and treaty provisions regarding eavesdropping, torture and treatment of war-time prisoners. Not only that, their legal advice largely was given in secret, involving secret programs.

While an argument about the need for military secrecy can be grafted upon the legal opinions Yoo and Bybee produced, it's pretty telling that high-level Bush administration attorneys were cut out of the loop once they expressed any disagreement with the unethical and flawed legal reasoning supporting Bush's secret programs. Moreover, there is a damning self-consciousness of possible future prosecution appearing in Alberto Gonzales's January 25, 2002 memo to President Bush. That aspect to the memo preemptively belies any argument that his advice was based either on existing law or a good faith argument for change or modification of existing law. These men knew they were not offering legal advice to assist a president in faithfully executing the laws of the land. Rather, they were using tortured legalese to convince underlings that the mistreatment they had been ordered to perform on detainees was not torture and not illegal.

The information the Bush administration has continually sought to suppress about many of its anti-terrorism programs qualify for secrecy more on the basis of embarrassment than to hinder the work of al Qaeda --- it is more for obstructing criminal investigations against Bush officials than to trap the Taliban. The mythical "rational man" of the lawyers' hypothetical questions would conclude that President Bush wants secrecy at this late date more to stay out of prison and to salvage his legacy rather than to win a war. So would real people.

Here's a New Year's resolution for you: Write to your US senator and your US representative. Demand that their appropriate congressional committees investigate how the Bush administration broke the law and whether any new legislation would prevent this from occurring in the future. And insist that any evidence of White House criminal behavior be turned over the Justice Department for prosecution --- after George Bush no longer controls the Justice Department.

Why?

Because Americans will face more of this skullduggery in the future if it isn't repudiated by prosecution soon. The "gap" indeed. Look at how President Bush's legal "scholars" have transformed a necessary process for the rule of law into the monster of Mary Shelley's Frankenstein.