If the OLC says a previously outlawed practice, such as water boarding, is legal, it is nearly impossible to prosecute US officials who followed that advice on good faith.

…..OLC memos were virtual "golden shields" ( Jack Goldstein, p. 65 The Dark Side)

In short, Jane Mayer asserts on page 65 of The Dark Side that:

The OLC plays a unique role in the federal government. Sometimes referred to as the Attorney General’s law firm, its small but often brilliant staff of lawyers, many of whom are political appointee, issue opinions that are legally binding on the rest of the Executive Branch. If the OLC interprets the law in a certain way, unless the AG overrules it, the government must, too.

This is important information which raises really important questions. I am no expert of the DOJ or OLC; however, it doesn’t take a rocket scientist to understand that some damage control is needed IMMEDIATELY. I would love to hear from the lawyers here who can shed more light on where we stand today. Thanks.

According to The Dark Side, page 66, the OLC memos were the product of The War Council, a 5-member group consisting of Addington, Yoo, Flanigan, Gonzales, and Jim Haynes.

Pages 1-70 of Mayer’s The Dark Side invite us to believe that the five member War Council, consisting of lawyers Addington, Yoo, Flanigan, Gonzales, and Jim Haynes used the powers of the OLC to provide legal cover for all the post-911 power grabs of the Executive Branch.

This raises many important questions.

Foremost, is whether the powers and protections of OLC opinions are a "golden shield" if OLC underlings like Yoo craft legal legal opinions secretly, without the knowledge and approval of the Attorney General or their supervisors (as Yoo did regarding the NSA TSP program, see pages 66-70).

If the first quote above states the OLC opinions become law IF approved by the AG, but the AG isn’t given an opportunity to review the opinion to either accept or reject it, how can an underling like Yoo’s opinions be relevant?

Again, if any of Yoo’s opinions were written in secret from his supervisor and the AG, do they really provide the OLC "golden shield" Addington and Yoo promised Cheney and Bush Co?

If Yoo kept his opinions a secret from his supervisor, the AG, NSA, Defense, Congress, and the Secretary of State were Yoo’s actions insubordination?

If Yoo’s secret opinions are deemed insubordinate under Department of Justice rules, then do they have any standing of protection for Bush Co and others?

And, if not insubordinate, and Yoo and Addington played off an OLC loophole, does this loophole need to be addressed by Congress/Supreme Court?

How can we be protected against further abuse (remember the Wire Tap NSA TSP program, 35 page memo written by Yoo justifying the disregard for our Constitutional rights was seen by NO ONE other than perhaps Yoo’s 4 War Council cohorts and the VP/President, until 2003.

The Dark Side, page 70:

"It was unfathomable, said Jack Goldsmith, who became the head of he Office of Legal Council (OLC) in late 2003. He finally became one of the very few people in the country with access to Yoo’s secret legal work on the surveillance program when he took over. After reading it for himself, Goldsmith was shocked. In his book The Terror Presidency…..the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations."

When secrecy is used by the OLC to by-pass and/or change laws that grant increased power to the Executive Branch, can the next or new OLC (Obama’s in this case) go through each and every Executive Order and OLC opinion and, if determined contrary to established law, write new opinions to undo any/all damage done or render them moot?

In short, can a succeeding OLC do damage control to restore and insure the constitutional checks and balances that have served our country well?

In Scott Horton’s words on page 70 of the Dark Side:

…accused them of attempting to "overturn two centuries of jurisprudence defining the limits of the executive branch. They’ve made war a matter of dictatorial power."

Or worse, if nothing is done, can a succeeding OLÇ do further damage?

If OLC underlings like Yoo are not held accountable, can future OLC underlings be free to work in secret concert with the legal advisors of the VP and President, with no consequence, too?

What is to prevent a secretive cabal like the War Council from empowering a future President to invent new law and disregard long-standing law, potentially even further stripping even US citizens of their constitutional protections?

What assurances do we have that our constitutional protections have been restored?

On May 28, 2009 I diaried a time line for how torture was sanctioned by Bush Co and included links to the back up documents here:


I plan to update this to include the OLC info from Jane Mayer’s book: The Dark Side.