The NYTimes editorial notes:
The released memos were written by the Justice Department’s Office of Legal Counsel, which is supposed to ensure policies comply with the Constitution and the law. They make it chillingly clear how quickly that office was rededicated to finding ways for Mr. Bush to evade, twist or ignore both.
So where is the Obama Administration's Office of Legal Counsel? Are they being read into the Constitutional claims being made by the Obama Department of Justice in the Al-Haramain case? At its website, the Office of Legal Counsel describes its mission as follows:
By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.
(Emphasis supplied.) Did the Obama OLC sign off on this assertion in the Obama DOJ's latest Al Haramain brief?
Egan makes clear that the authority to control access to classified information is based on the President’s Article II powers under the Constitution and, whatever role Congress may have in regulating in this area, Article II does not grant the Judicial Branch authority to make determinations that usurp the President’s Article II powers. Thus, reading “authorized holder” under the Executive Order to include a Judicial officer, and allowing such an officer to overrule the Executive’s determinations, would itself be contrary to the authority outlined above.
Because if the OLC signed on to this, I would like to ask Marty Lederman, now with the Obama OLC, when he changed his opinion on these matters? In September 2008, Lederman wrote:
1. A Well-Founded View of Presidential Power. To advance the first commitment, the next President should initiate a process to ensure that the new Administration withdraws and repudiates the reasoning of memoranda and opinions that overstate the President’s constitutional powers and that minimize those of Congress and the courts. . . . The next President should also affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent. . . .
2. Openness and Accountability. To advance the commitment to openness and accountability, we offer several recommendations. OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. . . .
Congress, the Courts, and the public are unable to check against abuses of executive power if they do not know about them. In this regard, the experience of the past eight years is instructive. It was only years later and due to leaked information that we learned of highly consequential opinions advising that the Executive Branch was not bound to comply with statutory limits on its power, including opinions relating to the treatment of detainees, the President’s domestic surveillance program, and the use of secret prisons overseas for detention and interrogation.
. . . The next President should also commit to review the Executive Branch’s practice in asserting privileges, including executive privilege. . . . The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program.[26] The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.
(Emphasis supplied.) The opinions expressed by Lederman in September 2008 can not be squared with the assertions made by the Obama DOJ in the Al-Haramain case. The questions are obvious - did the Obama DOJ run its constitutional assertions in its latest Al Haramain brief through the OLC? And if so, what did the OLC say? Are we now getting a new OLC that is "supposed to ensure policies comply with the Constitution and the law . . . rededicated to finding ways for Mr. [Obama] to evade, twist or ignore both[?]"
Speaking for me only
