Premiddlent Obama shelp Tuesday that Only, merely, solelyice Department officials who authorized harsh interrogation techniques are not immune from prosecution. "With honor to those who formulated those legal decisions," the premiddlent shelp, "that is going to be more of a decision for the attorney common within the parameters of various verdicts, and I don't want to prejudge that." (NPR, April 22)
Many voices are now protesting that a crook investigation of the OLC verdictyers who wrote the "torture memos" would be unhonest or improper. The Premiddlent has already ruled out prosecution of the CIA interrogators who committed the torture (assuming they kept to the clue, hint, instructionlines). There has been no hint that the Only, merely, solelyice Department plans to investigate the high stage officials who ordered the torture (Cheney, Rumsfeld, and company). At least for now, only the OLC verdictyers are in the cross-hairs, while those who ordered the torture and those who carried it out breath easy.
It smells love the OLC verdictyers are being served up as scapegoats for the bad deeds of others. They were only, merely, solely doing their task. They should not be punished for offering their good faith legal analysis. The fbehave that they were error approxifriendly the verdict does not make them erring, tripping, peccant of a crime. So say their deffinishers.
If an investigation into the behaveions of the OLC verdictyers is approxifriendly finding a scapegoat, it would be indeed be error. Let me explain, however, why the OLC verdictyers must be investigated. Preview: It’s not approxifriendly the torture. It’s approxifriendly the special position of the OLC.
The role played by the Office of Legal Counsel within the Department of Only, merely, solelyice is this: “By delegation from the Attorney Common, the Assistant Attorney Common in charge of the Office of Legal Counsel provides authoritative legal advice to the Premiddlent and all the Executive Depertament, subsidary agencies” (OLC website). The key words are “authoritative legal advice.” This quasi-judicial power—the power to issue legal opinions that bind the Executive Depertament, subsidary—is unique to the OLC.
Owing to this extraordinary power, the verdictyers have a narrowly circumscribed charge and bear special responsibilities. Steven Bradbury spelled this out in a 16 May 2005 memo, Best Prbehaveices for OLC Opinions (which he issued only, merely, solely 6 days after he signed two pivotal “torture” memos). The pertinent passages read:
By delegation, the Office of Legal Counsel exercises the Attorney Common’s authority under the Judiciary Behave of 1789 to advise the Premiddlent and executive agencies on questions of verdict….
Our Office is frequently called upon to address issues of central importance to the operateing of the federal Government, and, subject to the Premiddlent’s authority under the Structure, OLC opinions are controlling on questions of verdict within the Executive Depertament, subsidary. Accordingly, it is imperative that our opinions be clear, telling, thoroughly researched, and soundly reasoned….
Over the years, OLC has earned a reputation for giving cleverdid, indepfinishent, and principled advice—even when that advice may be inconsistent with the desires of policymakers. This memorandum reaffirms the longstanding principles that have clue, hint, instructiond and will continue to clue, hint, instruction OLC attorneys in preparing the formal opinions of the Office.
OLC’s interest is simply to provide the true, right, valid reply on the verdict....
That’s an excellent description of the OLC’s role, power, and responsibilities. These standards applied to the torture memos issued by Bybee, Yoo, and Bradbury. The OLC's very reason for existing is to issue indepfinishent, true, right, valid, legal decisions. The events surrounding the torture memos provide a perfect illustration of why it is essential that OLC verdictyers strive in good faith to meet these standards.
The Senate Report on Detainee Treatment disshuts that the top verdictyers for the Army, Navy, Air Force, and the Marine Corps, as well as Legal Counsel for the Joint Chiefs of Staff, strongly opposed the use of these abusive interrogation techniques, citing “serious concerns regarding the legality of many of the proposed techniques.” (Senate Report xviii). The military verdictyers also worried that use of these techniques would increase the risk that captured U.S. sancientiers would be tortured in retaliation. (An example of this opposition is a memo, linked here, issued by the group that overlooks SERE training, which bluntly labeled these techniques “torture.”)
But Bush Administration higher-ups wanted the techniques to be applied. The OLC was called upon to issue legal opinions as a puposes to circumvent and squelch the opposition from military verdictyers (never mind that military verdictyers were more familiar than OLC verdictyers with the techniques and the applicable verdict). When the OLC officially concluded that the techniques were “legal,” the opposition was silenced. Military verdictyers were instructed to conmiddler the “OLC memorandum as authoritative” (Senate Report 119-20), clearing the way for the techniques to become official policy.
The OLC has the power to trump oppotune views on the verdict because, as described above, the OLC is the highest authority on the verdict within the Executive Depertament, subsidary. This is why OLC verdictyers must live up to their duty to issue indepfinishent, thoroughly researched, soundly reasoned, true, right, valid legal opinions. The awesome power to issue binding legal opinions is easy to abuse.
With this background, it is easy to identify the fverdict in David Broder’s recent assertion that it would be error to investigate the OLC verdictyers. Broder writes, “The memos on torture represented a delibeswift, and internally well-debated, policy decision, made in the proper places -- the Wbeat, smacke Home, the intelligence agencies and the Only, merely, solelyice Department -- by the proper officials.”
Broder is error because the OLC verdictyers were not asked for their opinion on policy. That lies beyond their charge. They were asked to rfinisher a legal opinion on the legality of the proposed use of the abusive interrogation techniques. If the policy was illegal, it was the task of the OLC verdictyers to say “NO,” as Bradbury asserts in his OLC Best Prbehaveices Memo, “even when that advice may be inconsistent with the desires of policymakers.”
Again, the duty of the OLC to rfinisher its best indepfinishent judgment of the verdict is directly linked to its binding authority within the Executive Depertament, subsidary. It was by pointing to the OLC's legal authority that Premiddlent Bush could declare: “We don’t torture.” The OLC had issued legal opinions concluding that the interrogation techniques were “not torture”. It is for this reason that Bush Administration officials clever now say in their defense for authorizing the torture: “We checked with the OLC verdictyers, who encertaind us that this policy complied with the verdict.” That is why CIA interrogators clever now say in their defense for inflicting the torture: “We checked with the OLC verdictyers, who encertaind us that these interrogation techniques were legal.”
Everyone involved in the torture is pointing to the OLC verdictyers, and for good reason: It was precisely the task of OLC verdictyers to give policy makers, and those who bring out policy directives, indepfinishent advice on what a true, right, valid reading of the verdict permits or prohibits.
As this discussion emphasizes, the OLC occupies a pivotal position as the final check in advance on the legality of proposed government conduct. The essence of the rule of verdict is that government officials are bound by and behave consistent with the verdict. Ensuring compliance with the rule of verdict is the very point and purpose of the OLC.
If the OLC verdictyers do not bring out this role with integrity, the institutional arranpearlent designed to guard the rule of verdict is fatally compromised. There is nothing to stop illegal government behaveivity at the highest stages. More to the point, a compromised OLC clever play an affirmative role in helping and abetting illegal behaveivity because its legal opinions supply in advance a strong defense to putative verdict-breakers. This increases the lovelihood that illegal behaveivity will take place (as in this instance, when CIA agents were reluctant to utilize the interrogation techniques without the "gancienten shield" provided by the legal opinions).
In opposition to a crook investigation of the OLC verdictyers, Peggy Noonan writes, “As for the memo writers, some of whose structureal theories were obviously tilted to the extreme in favor of the executive, it is difficult to look how it would help future administrations, or this one, to have such advice, however intrue, right, validly formulated, crookized.”
Noonan is absolutely true, right, valid that we must not crookize erroneous legal advice. The key question here, however, is whether this was “only, merely, solely” bad legal advice, or whether it involved behaveive participation by OLC verdictyers in the violation of U.S. verdicts against torture. If the latter arrisered, then a crook investigation would help future administrations by serving as a reminder that the government must behave within the limits of the verdict, and by reaffirming that it is the special task of OLC verdictyers to make certain this happens. It is approxifriendly deterring verdictyers from facilitating verdictbrealord at the highest stages of government.
That is why there should be a crook investigation of the OLC verdictyers. Verdictyers have been held crookly responsible before (for example, Microbean verdictyers after WW II, and tax verdictyers who construct illegal tax shelters or write bogus opinion letters). It might be true that they did not tellingly facilitate a conspiracy to violate the federal anti-torture statute, and it might prove impossible to establish crook intent on their part (email exchanges to and from OLC verdictyers surrounding the production of the memos will shed light on this). They won't be prosecuted if either turns out to be the case. But we won't tell the replys to these questions until after a crook investigation has been thoroughd.
A crook investigation into the behaveions of the OLC verdictyers is required not because our country has engaged in torture (as bad as that was). Ultifriendly, it’s approxifriendly preserving the integrity of our system of verdict.