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A Failure of Legal Scholarship

The smart legal types in the blogosphere have weighed in on whether or not OPR’s investigation of two OLC opinions (the rationale for warrantless wiretapping and the rationale for torture) can accomplish anything. Marty Lederman writes,

I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.


Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC’s advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.

In an op-ed in the National Law Journal, Sheldon Whitehouse (who pushed OPR to conduct the torture-related of these two investigations) elucidates what he thinks the OPR is likely to to find.

This substantial body of precedent [finding waterboarding illegal] has been documented by Evan Wallach in the Columbia Journal of Trans- national Law. Most notably, Wallach details incidents of waterboarding prosecuted by DOJ itself: the 1983 federal prosecution of a Texas county sheriff who waterboarded prisoners. The indictment asserted that the defendants conspired to "subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions." The sheriff and his deputies were all convicted. The 5th U.S. Court of Appeals affirmed. U.S. v. Lee, 744 F.2d 1124 (1983). At sentencing, U.S. District Judge James DeAnda admonished the former sheriff, "The operation down there would embarrass the dictator of a country."

How is it that the OLC, the elite legal conscience of DOJ, completely missed a U.S. Court of Appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department? Is this a failure of legal analysis, or something much, much worse?

The torture memo is part of a disquieting pattern at the OLC. As a member of the Senate Intelligence Committee, I have been able to review secret OLC opinions on the warrantless wiretapping program. Those opinions contained several deeply troubling legal theories, which I was eventually able to have declassified. Simply put, those theories are: The president is not obliged to follow executive orders; Article II of the Constitution gives the president the authority to determine what his Article II powers are; and DOJ is bound by the president’s legal determinations. These theories, issued in secret, are breathtaking in scope. They argue for an executive outside the checks and balances of the law. They erode the balance of powers on which our system of government was founded, defying its very underpinnings.

In the hothouse of ideology that the OLC appears to have become, conditions were ripe for abuse. OLC opinions were written in secret, protected from public scrutiny, peer review and critical analysis. The appointees were ideological. The results have been devastating. And the failure of scholarship in the OLC’s analysis of torture suggests that the answer was preordained. By whom, one wonders. The investigation now under way by the Office of Professional Responsibility should help us better understand what the OLC has become, and what now must be done to reclaim this great institution. [my emphasis]

That is, Whitehouse suggests that the OLC failed to do the most basic thing–look for precedents relating to waterboarding. Instead, Whitehouse points out, Yoo based his argument for the Bybee memo on a precedent pertaining to health care reimbursement law.

So Whitehouse suggests that the OPR investigation should point out that OLC ignored precedents. He calls this both a "failure of legal analysis" and a "failure of scholarship," even while he suggests it may be something much worse.

But even if OLC agrees that the smarties running OLC ignored obvious legal precedent, then what happens? Does that get you all the way–as Whitehouse suggests–to arguing the results of the analysis were preordained? And if OPR’s mandate is restricted to the legal ethics of lawyers within DOJ, how would it weigh in properly on the question we all know the answer to: "by whom, one wonders"?

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