Will Obama Keep His Word Today?

Glenn Grennwald notes that today marks a crucial step in determining whether Obama will uphold the rule of law.

Today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law. After seeking and obtaining multiple extensions of the deadline, today is the final deadline for the Obama DOJ to respond to the ACLU’s FOIA demand for the release of four key Bush DOJ memos which authorized specific torture techniques that have long been punished (including by the U.S.) as war crimes. Today, Obama will either (a) disclose these documents to the public or (b) continue to suppress them — either by claiming the right to keep them concealed entirely or, more likely, redacting the most significant parts before releasing them.

[…]

I want to underscore one vital point about this controversy that is continuously overlooked and will be undoubtedly distorted today in the event of non-disclosure: these documents are not intelligence documents. They are legal documents and, more specifically, they constitute what can only be described as secret law under which the U.S. was governed during the Bush era. Thus, the question posed by the release of these OLC memos is not whether Obama will release to the public classified intelligence programs. The question is whether he will release to the public the legal doctrines under which the U.S. Government conducted itself regarding interrogation techniques he claims are no longer being used. [emphasis in original]

This is absolutely right. The OLC’s opinions act as kind of a “mini-Supreme Court” for the executive branch that governs what it feels is the limit of the law. American citizens have the right to know under what legal doctrines the government believes it can operate. With that in mind, I hope that Obama will pass this test and release the OLC memos unredacted.

But I won’t hold my breath for that.

FILED UNDER: Law and the Courts, , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. Tlaloc says:

    But I won’t hold my breath for that.

    Understandable. Obama’s been spectacularly unimpressive in terms of restoring the rule of law. Starting with his vote on FISA and then his maintaining of warrantless wiretapping and secret detention sites.

  2. Zelsdorf Ragshaft III says:

    The wiretapping and secret detention sites will be useful when countering right wing radicals who believe in small government and are generally anti Obama. Obama has plans (I will transform America) for this country that do not include liberty.

  3. Tlaloc says:

    The wiretapping and secret detention sites will be useful when countering right wing radicals who believe in small government and are generally anti Obama. Obama has plans (I will transform America) for this country that do not include liberty.

    Aren’t you glad now that you supported giving the POTUS supreme powers to spy on Americans and cart them off to secret prisons with no review?

    Aren’t ya? I bet you are.

  4. PD Shaw says:

    I disagree with the this:

    these documents are not intelligence documents. They are legal documents and, more specifically, they constitute what can only be described as secret law under which the U.S. was governed during the Bush era.

    These appear to be opinions of lawyers. Gather enough lawyers in a room and you’ll have a roomful of opinions. The opinions may be good, bad, or evasive. They may be based upon incomplete or inaccurate information. They are always subject to change.

    I firmly believe our government officials should have unfettered, confidential access to legal opinions to help shape and direct policy. The reason Greenwald wants access to the attorney consultations is to use the evidence to prosecute the President. What incentives does that give future Presidents?

  5. Our Paul says:

    Tell me Alex, are you walking both sides of the street, or you willing to follow brother Glenn Greenwald side of the street to his logical concluding end? To quote from Greenwald’s blog:

    To the contrary: they were written by DOJ lawyers — specifically, OLC chief Steven Bradbury and then-OLC Assistant Attorney General Jay Bybee. They are not “intelligence reports” from the field. They are, by definition — by their very nature — nothing more than decrees about what is and is not legal…

    Are you ready, in the future, to support disbarment or war crime prosecution of Bradbury and Bybee? Or at that point will the ye old fig leaf that advising the President incorrectly is a “mistake”, and not a crime, be trotted out?

    Do you approve of the Republican Senator’s threat to filibuster and tie up the Senate if DOJ investigates the torture issue for prosecution? They already have held up Dawn Johnson’s OLC appointment because of her support in lancing this festering wound of torture one the American character.

    I join Robert Service’s omniscient observer commenting in the Shooting of Dan McGrew that I am not wise as these lawyer guys, but strictly between us two, the torture memo’s will be released, but names will be redacted. You do not open a new battle front, when you have an intractable group of patriots with no wishes to compromise, or seek solutions to our multiple problems.

  6. Alex Knapp says:

    PD –

    These appear to be opinions of lawyers. Gather enough lawyers in a room and you’ll have a roomful of opinions.

    Not quite. The OLC provides advice for the executive branch, and basically sets “precedent” as to policy. Executive branch agencies act in accordance with those opinions unless they are countermanded by an Act of Congress, a court ruling, or Executive Order. So the memos do have legal signficance.

    Are you ready, in the future, to support disbarment or war crime prosecution of Bradbury and Bybee? Or at that point will the ye old fig leaf that advising the President incorrectly is a “mistake”, and not a crime, be trotted out?

    If it can be shown that lawyers in the OLC acted contrary to the codes of professional ethics under which they should follow, then yes, I would support disciplinary action up to and including disbarment. If their actions in crafting executive branch policy is prosecutable under existing Federal laws against torture and ill-treatment of prisoners then yes, I would support their prosecution.

  7. Tlaloc says:

    What incentives does that give future Presidents?

    I think it gives them an excellent incentive not to, you know, commit war crimes.

    Wait, you think that’s a bad thing?

    Huh.

  8. PD Shaw says:

    Perhaps Alex you could direct me to a discussion of these issues with a little less of Greenwald’s hyperbole. OLC opinions are generally confidential, even when they don’t deal with issues of national security. I think legal confidentiality is important and waiving it has high decision-making costs.

  9. Alex Knapp says:

    PD –

    The Executive Branch is not the client of the United States government, and so no attorney-client privlege exists, as I understand it. OLC memos are, in fact, routinely published and available on their website:

    http://www.usdoj.gov/olc/opinions.htm

  10. PD Shaw says:

    Alex:

    This is from the OLC description of its role quoted by Greenwald:

    Most OLC opinions consist of confidential legal advice for senior Executive Branch officials. Maintaining the confidentiality of OLC opinions is often necessary to preserve the deliberative process of decisionmaking within the Executive Branch and attorney-client relationships between OLC and other executive offices; in some cases, the disclosure of OLC advice also may interfere with federal law enforcement efforts. These confidentiality interests are especially great for OLC opinions relating to the President’s exercise of his constitutional authorities, including his authority as Commander in Chief. It is critical to the discharge of the President’s constitutional responsibilities that he and the officials under his supervision are able to receive confidential legal advice from OLC.

    LINK

  11. PD Shaw says:

    Looks like the issue is moot now. To be clear, I don’t question Obama’s authority to release the memos, just his judgment. Now we can wait for future President Palin to release memos to embarrass the Obama administration.

  12. Tlaloc says:

    Apparently Obama has released the memos but I haven’t heard how heavily redacted they might be.

  13. sam says:

    The documents are available on the ACLU site in pdf format.

  14. Our Paul says:

    Thank you for your prompt reply, Alex (April 16, 2009 | 12:48 pm). Lost in the haze of the torture controversy is the issue of abuse, which you briefly address in the last sentence of your post as “ill-treatment of prisoners”.

    And there my friend, lies the problem. If we sweep torture under the table, we do not have to think of abuse. The past administration’s torture memos which detailed the attempt to define torture, bring with them on stage, the permission to abuse.

    If you discuss, for example the treatment of Padilla, no one can argue that he was maintained in almost total sensory deprivation state. Blindfolded and ear-muffed when he left his cell, for all we know his solitary confinement continues today. Finer minds than mine can devote themselves to defining whether this type of confinement constitutes torture. Bradbury and Bybee apparently did. I for one would like to see how they reached their conclusion, and how they skirted the issue of prisoner abuse.

  15. Tlaloc says:

    Looks like they were released with minimal redacting. Good for Obama. It was the right thing to do.

  16. Our Paul says:

    The torture memos have been released and can be found at at this ACLU site.

    They are redacted in places, but fully readable on my brief scan. They sure do not cover the participants with glory.

    Memeorandum is lighting up the blogosphere. The primary link is to the ACLU site indexed in my first paragraph, and it contains 17 blog references. There are 14 Related points of entry listed, with of course the usual suspects listed as blog references.

    As an East Coast Man, time for me to go to bed.

  17. Tlaloc says:

    You know if I was feeling suspicious I might guess that the memos were timed to be released just after the tea parties. The question of ”
    will he-won’t he” means they are sure to generate a buzz, and the overall issue immediately recalls the right’s biggest millstone (Bush) the day after their big power play.

    If it was planned it was a nice bit of political juijitsu. If coincidence then it has to sting for the tea party boosters to have the news cycle they worked so hard to manufacture cut short by fate.