An Article by Daniel Cluchey

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Abstract

Many potential policy problems arise when lawyers within the Department of Jus­tice’s Office of Legal Counsel (OLC) determine that a congressional statute does not apply to the Executive Branch. Most OLC opinions of this nature are not currently re­quired to be disclosed to the public or Congress, despite their having the binding force of law over Executive Branch personnel. As a result of this legal regime, Executive Branch officials are capable of implementing, at times secretly, policy programs that would otherwise be impermissible but for unreported OLC opinions providing them with legal cover. This paper recommends a new standard for mandating disclosure of these opinions that strives to protect interagency candor while preventing the implementation of policies that rely on secret Executive Branch law. The proposed mechanism for achieving this balance is a retroactive trigger; rather than mandate reporting any time OLC makes a determination that a statute does not apply to the Executive Branch, this system would make unlawful any policy program that arises from such opinions unless the opinions in question were disclosed to Congress at least 30 days prior to the implementation of the policy. Under this arrangement, OLC could continue to shield opinions from scrutiny up until Executive Branch decision makers opt to use them to justify new policy programs, and the programs themselves could not commence without Congress having had the opportunity to review their legal bases.

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About the Author

Dan Cluchey is a member of Harvard Law School’s class of 2012, and received a Bachelor of Arts in Political Science from Amherst College in 2008. A native of Cape Elizabeth, Maine, Dan intends to pursue a career in public service and com­munications at the federal level. He will be working as a speechwriting intern for Attorney General Eric Holder during the summer of 2011.

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Introduction

The White House Office of Legal Counsel (OLC) stands at the nexus be­tween the law as written and the law in execution, the hermeneutical prism through which congressional action is rendered for the purpose of federal policymaking. Legal by nature but political by dint of its loca­tion within the Executive Branch, OLC exercises its prodigious interpretive power from a delicate place — striving to provide objective legal advice while remaining “politically and philosophically attuned to the policies of the administration.”1 The inherent tension between the dual goals of objectivity and political support has colored Executive Branch lawyering since the creation of the Attorney Gen­eral’s office in 1789.2 Since its founding in 1934, OLC opinions have guided presi­dents in moments of great import. Luther Huston notes as examples the following:

[I]n 1940, the “Lend-Lease” opinion of Attorney General Robert H. Jackson gave President Roosevelt legal authority to transfer American destroyers to England in return for the right to establish naval and air bases in British pos­sessions. In 1957, the Office of Legal Counsel justified the use of federal troops in Little Rock, Arkansas, to enforce a court order that the schools be [de]seg­regated. And in 1963, the Office devised the basis for the quarantine of Cuba during the missile crisis.3

For all of its influence over Executive Branch decision making,4 however, OLC is not subject to anything approaching the level of scrutiny imposed on most actors engaged in binding statutory interpretation. Many OLC opinions go undisclosed, and the overwhelming majority of Executive Branch interpretations never face judicial review.5 Naturally, there has been ample demand for increased OLC trans­parency, particularly in the wake of the controversy surrounding the so-called tor­ture memos issued by OLC during the first term of George W. Bush’s presidency.6

The value to be gained from heightened disclosure of OLC analysis is largely self-evident. When Executive Branch lawyers determine that the president is not bound by a congressional statute, and are then not required to report their de­termination to Congress or the public at large, the door is opened to the prospect of wholly unfettered Executive power and potentially grave abuses of the rule of law. Congress has articulated its staunch antipathy to “secret” Executive decision making in a number of other contexts: the Freedom of Information Act “repre­sents a strong congressional aversion to ‘secret (agency) law,’ and…an affirmative congressional purpose to require disclosure of documents which have ‘the force and effect of law,’”7 while the Administrative Procedure Act contains a number of provisions aimed at advancing the transparency of Executive Branch statutory interpretation with regard to the general public.8 Yet when it comes to mandatory disclosure of OLC opinions that enable Executive Branch personnel to disregard statutes, Congress has thus far failed to create the legal regime necessary to pro­vide even a basic form of meaningful oversight.

This paper will recommend an entirely new structure for mandating dis­closure of this particularly troublesome breed of OLC opinions, one that seeks to promote transparency for all legal analysis that leads to the implementation of programs in contravention of congressional statutes while protecting both those opinions that never result in controversial programs as well as OLC candor more generally. In order to propose such a regime, we must confront the apparent defi­ciencies that doomed Congress’ latest attempt to increase OLC transparency.

The OLC Reporting Act of 2008

The most recent effort to heighten OLC disclosure requirements beyond their cur­rent levels9 was the OLC Reporting Act, introduced in the Senate in September of 2008 by Sen. Russ Feingold (D-WI) and in the House of Representatives the follow­ing January by Rep. Brad Miller (D-NC).10

Asserting that OLC opinions concluding that the Executive Branch is not bound by a congressional statute constitute “truly a separate — and sometimes conflicting — regime of secret law,”11 the bill’s authors proposed new reporting rules that would obligate the Attorney General to make a disclosure to Congress any time an opinion (1) determined that a federal statute violated the Constitu­tion, (2) relied on the doctrine of constitutional avoidance and cited Article II or the separation of powers in determining that the application of a statute to mem­bers of the Executive Branch would trigger constitutional problems, (3) rested on a “legal presumption” against the application of a statute to the Executive Branch, or (4) concluded that a later act of Congress had deprived a statute of effect in an instance in which the second enactment did not expressly state an intent to supersede the first.12

The bill was met with considerable opposition by outgoing Attorney General Michael Mukasey, who argued that the expanded reporting requirements were both unconstitutional and an affront to critical policy interests, the latter of which will be addressed later in this paper.13 Mukasey raised two objections with regard to the constitutional question: first, that the bill would encroach upon the president’s authority “by purporting to prescribe the content, timing, and recipients of any classified disclosures the Ex­ecutive Branch chooses to make in connection with [OLC] reports,” and second, that the advice provided by OLC cannot be mandatorily disclosed on the grounds that it is protected by the doctrine of executive privilege.14

On the first point, Mukasey relied upon OLC precedent as well as the rule, articulated in Dep’t of Navy v. Egan, that the president’s “authority to classify and control access to information bearing on national security … flows primarily from [Article II] and exists quite apart from any explicit congressional grant.”15

On the second, he argued that OLC opinions are subject to three components of the doctrine of executive privilege — namely, the confidentiality traditionally afforded to attorney-client communications, presidential communications, and the deliberative processes of the Executive Branch — and justified their protected position on policy grounds, asserting that mandatory reporting would destroy the candid nature of OLC advice and deter Executive Branch officials from soliciting opinions from OLC out of a fear of prompting unwanted disclosure.16

At three points in his six-page memo condemning the bill, Mukasey decried the disclosure of OLC opinions that had not, and potentially would not ever lead to the actual implementation of an Executive Branch policy or program.17

In introducing the OLC Reporting Act, Feingold addressed the issue of dis­closing opinions that did not serve as legal premises for program implementation:

To be sure, there are sound arguments for shielding from public disclosure…final OLC opinions that are not adopted as the basis for an executive branch policy…Indeed, in his testimony before the Constitution Subcommittee in April, the Deputy Assistant Attorney General for OLC acknowledged that the confidentiality interest in OLC opinions is “completely different” for opinions that have been implemented as policy, and that such opinions should be made public “as fast as possible.” 18

The Supreme Court has spoken to this distinction as well, holding in NLRB v. Sears, Roebuck & Co. that Executive Branch agency opinions are not privileged when they “embody the agency’s effective law and policy.”19 Despite the diver­gent levels of interest in disclosure between opinions that lead to actual imple­mentation and opinions that do not — a critical dissimilitude noted by Feingold, Mukasey, and the Supreme Court — the OLC Reporting Act did not contemplate implementation as a factor in triggering mandatory disclosure, having opting in­stead to require reporting in all instances in which an opinion concludes that a statute does not apply to the Executive Branch.20 As such, the bill as proposed was arguably weaker in both a constitutional sense and as a matter of policy due to the fact that it would have subsumed opinions that have not led to the actual implementation of an Executive Branch program.

The Implementation Trigger

If a new reporting regime is to be enacted, it would need to strike an appropriate balance between the dual and dueling interests of transparency and candor in or­der to be politically palatable. To that end, a system would have to be devised that mandated reporting of those opinions that have served, or are imminently poised to serve, as bases for program implementation, while keeping all other opinions outside of the bailiwick of disclosure rules.

The creation of secret law can be thought of as a two-step process: first, OLC makes a legal determination that the Executive Branch is not bound by a statute, and second, the Executive Branch implements a policy in reliance on that deter­mination. While the bulk of the debate surrounding this issue has centered on the merits of using the first step as a trigger for OLC reporting (the chosen mechanism of the OLC Reporting Act21), scant attention has been paid to the concept of rely­ing on the second step — the policy rather than legal genesis of secret law — as a trigger instead.

From a transparency standpoint, the problem with requiring the disclosure of opinions only at the moment of program implementation, of course, is that such a system would leave Congress with no time to question the Executive Branch’s interpretation or intervene in the program before it begins. This can be remedied, however, by making the trigger a retroactive device. Under this system, when the Executive Branch chooses to implement a program that relies on an OLC opinion for its legality, it must disclose the opinion 30 days prior to the commencement of the program for the opinion (and therefore the policy) to be considered lawful by Congress.

The decision to execute a new policy would remain the event that triggers mandatory disclosure, but the policy would not enjoy legal support unless and until the OLC opinion had been available to Congress for 30 days, giving lawmakers an appropriate amount of time to review the legal rationale and react accordingly. In essence, this would change the reporting requirement from a disclosure man­date into a rule prohibiting policy programs that rely on undisclosed opinions. The basic standard would then be that no Executive Branch program, the legality of which rests on an OLC opinion concluding for any reason that the Executive Branch is not bound by a congressional statute, can be implemented until 30 days after the disclosure to Congress of the OLC opinion from which it derives its legal rationale.

A regime that required disclosure of OLC opinions 30 days prior to the imple­mentation of a potentially controversial program would effectively address a num­ber of the concerns raised by both Feingold in the interest of Executive Branch transparency and Mukasey in the interest of protecting OLC candor and Executive communications more generally. Even the most fervent proponent of transpar­ency would recognize that it is the implementation of a legally spurious program, and not the opinion rationalizing it, that is the true malfeasance to be guarded against. An OLC opinion that does not instigate a program, no matter how errant its analysis may be, cannot be said to rise to the level of secret law so long as it remains nothing more than the germ of potential secret law — that is to say, a secret opinion declaring that a law does not apply to the Executive Branch can do little harm until it is actually used to justify a secret policy.22

The D.C. Circuit has spoken to this distinction with regard to the Executive Branch, noting in Sterling Drug, Inc. v. FTC that “to prevent the development of secret law within the [Federal Trade Commission], we must require it to disclose orders and interpretations which it actually applies in cases before it” (emphasis added).23 While a semantic argument could be made that the opinions themselves constitute secret law, insofar as they are indeed interpretations of law that bind the Executive Branch,24 the true danger spoken of when the concept of secret law is invoked is its application in a practice, policy, or program — an unenforced ‘law’ is no threat until and unless the specter of its enforcement emerges.

A reporting trigger tied retroactively to program implementation would pro­tect the institution of OLC even as it increased transparency of the office’s most controversial and consequential opinions. Mukasey’s chief policy concerns with the OLC Reporting Act were that it would deter candid deliberation among Execu­tive Branch lawyers, “chill” the Department of Justice from providing thorough analysis of potentially extralegal policy programs (particularly with regard to the usage of those canons of construction25 specifically contemplated in the bill), discourage actors in charge of decision making from requisitioning OLC when disclosure would be especially unwanted, and, as an overall consequence thereof, “degrade the quality of the resulting legal advice and, thus, the integrity of the government decisionmaking [sic] to which it pertains.” 26

Beginning with the issue of thoroughness, an implementation-triggered re­porting regime would not distinguish between rationales employed by OLC per­sonnel — disclosure would occur only if an accompanying program was to be implemented, regardless of whether a conclusion of non-applicability was reached by way of the avenues of constitutional avoidance, commander-in-chief powers, a presumption against the application of a statute to the Executive, etc. By tying the reporting trigger to the policy decisions of those Executive Branch officials charged with implementing programs rather than to the legal decisions of law­yers within OLC, the methodology of those lawyers in preparing opinions would be less apt to become contaminated by political concerns over which species of legal reasoning would or would not mandate disclosure. If a conclusion has been reached that the Executive Branch is not bound by a particular statute, OLC per­sonnel will thus have no reason not to provide a thorough analysis or refrain from the use of appropriate canons of construction under a regime where their legal reasoning has no bearing on the disclosure of their opinions.

As for the candor of OLC opinions under an implementation trigger system, there is no reason to believe that it would be hindered by a reporting mandate if measures were taken within the prospective bill to protect it. The value of candor to Executive Branch decision making is indisputable — the Supreme Court has re­ferred to the overwhelming importance of confidentiality in communications be­tween high-level government officials and their advisors as “too plain to require” discussion,27 and noted that “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances… to the detriment of the decisionmaking [sic] process.” 28

There is relatively little interest in the disclosure of those portions of OLC opinions dealing with issues unrelated to the specific legal rationale used to ex­plain the reasons for not applying a statute to the Executive Branch; political determinations, moral calculi, and discussions of inter-agency legal disputes are all examples of material that does not carry a compelling public interest in transpar­ency. A proper standard for reporting, then, would be to require the disclosure of actual OLC opinions (as opposed to the potentially less transparent “complete and detailed statement of the relevant issues and background” requirement put forward by the OLC Reporting Act and codified previously by Congress29) redacted in such a way as to include only the totality of the legal rationale employed to reach its conclusion of non-application. This standard would protect candor wholly, save for only those instances when language is used to explain and support OLC’s legal interpretation of a statute.

The interest in disclosing to Congress the legal rationale used by the Execu­tive Branch to unbind itself from statutes, as discussed above, is substantial, and easily trumps the governmental interest in confidentiality and the notion of ex­ecutive privilege in all but the most extreme situations. Indeed, the protection of sensitive Executive Branch communications has been held by the Supreme Court to matter less than the public interest in prosecuting criminal suspects,30 the lat­ter of which being at the very least on par with the public interest in preventing the “abomination” of secret law.31 From a policy perspective, the prevention of programs that rely on secret law is paramount. Policy measures that are justified only by undisclosed opinions are concealed from the clarifying crucible of public discourse, and are by definition lacking in democratic legitimacy.

Mukasey’s third charge, that Executive Branch officials would shy away from soliciting legal advice from OLC under the reporting regime set up by the OLC Re­porting Act, rings somewhat hollow. While it is impossible to know with certainty whether high-level personnel would evade lawyers within their own branch of government in order to implement secret programs that might trigger disclosure of an opinion authorizing them as legal (were such an opinion to exist), to do so would be to eschew legal cover for their actions in the event that the program was later found to be unlawful. While most criminal defendants charged with illegal actions cannot make use of an advice-of-counsel defense,32 Executive Branch of­ficials who rely on OLC opinions enjoy a strong presumption of immunity borne of a tradition of non-prosecution33 as well as a number of criminal defenses unavail­able to the general public.34 For Mukasey’s fear to become a reality, then, Execu­tive Branch policy makers would have to be so ardently opposed to disclosure that they would intentionally forfeit the veritable promise of criminal immunity for themselves and their subordinates that accompanies the imprimatur of an OLC opinion — an unlikely scenario, to say the least.

While no reporting regime could ever completely satisfy both zealous ad­vocates of open government and the staunchest defenders of Executive power, the system described above represents a compromise that would likely do more for trans­parency than the current regime and more for the protection of candor and Executive Branch communications than the OLC Reporting Act. Naturally, any prospective reporting regime mandating more disclosure than is presently required would presumably face a measure of resistance from a sitting administration attuned by nature to the preservation of its own authority.

Given the relatively favorable attitude of the Obama Administration toward OLC transparency 35 — as evidenced notably by President Obama’s nomination of Dawn Johnsen, who lobbied strenuously on behalf of the OLC Reporting Act,36 to the post of Assistant Attorney General in charge of OLC37 — the prospect of reform in the near term is not out of the question (particularly given the Repub­lican majority in the House of Representatives38 that, while likely sympathetic to the concept of executive power generally, has expressed a fervent hostility to executive power as exercised specifically by the current administration39). This is not to say that support for a relatively stricter reporting system would be a foregone conclusion among either the White House or Congress, but the potential exists nevertheless, particularly given heightened concerns over the importance of Executive Branch transparency in the years following the George W. Bush Ad­ministration. With this opportunity in view, and with Mukasey’s policy concerns largely accounted for and transparency assured for those opinions that pose the greatest potential threat to the separation of powers, the question must now be asked: What constitutional and structural problems remain to be overcome by an implementation-triggered disclosure system?

Potential Obstacles

In addition to the political objections to a heightened reporting standard that would likely be levied by proponents of Executive power, an implementation-trig­gered disclosure mandate requiring the release of text from OLC opinions would need to confront the constitutional challenges articulated by Mukasey regarding the OLC Reporting Act.40 The charge that mandatory reporting would run afoul of the separation of powers by encroaching upon the authority of the president to prescribe the “content, timing, and recipients” of the disclosure of classified Executive Branch communications41 finds its basis in OLC tradition and, Mukasey argues, Supreme Court precedent.42 Dep’t of Navy v. Egan, the lone case cited by Mukasey in support of the idea that mandatory reporting would be unconstitu­tional, is relevant only to that fraction of OLC memoranda concerning statutes re­lated to national security, and even then only arguably so.43 While the Egan court “recognized the Government’s ‘compelling interest’ in withholding national secu­rity information from unauthorized persons in the course of executive business,”44 it did so in the context of a private dispute in which a former Navy employee seeking review of the revocation of his security clearance was denied access to confidential records.45

Additionally, the cases referenced by the Egan court in asserting the govern­ment’s interest in controlling national security information — Snepp v. U.S., U.S. v. Robel, U.S. v. Reynolds, and Totten v. U.S.46 — all involved private individuals seek­ing to obtain confidential national security information from the government in the interest of pursuing private claims.47 Indeed, no case appears to speak to the issue of the Executive Branch’s interest in withholding national security informa­tion from Congress as weighed not against a private interest, but rather against the substantial public interest in avoiding the prospect of secret law — the scenar­io imposed by the nondisclosure of the breed of OLC opinions discussed above.

Claims of executive privilege are softened by the same calculus that afflicts the Egan comparison. When it comes to the question of weighing executive privi­lege against the critical public interest in assuring against secret law, Raoul Berger offers the following historical perspective:

If the test of secrecy be protection of the public interest, then an alleged need, for example, to shield British-American military negotiations for defense against Russia, surely cannot be equated with the “need” for insulation of an Inspector General’s report so that “self-criticism” and “efficiency” may be pro­moted. The two are incommensurable. An assumption that information may be concealed from Congress on the plea of “administrative efficiency” would have shielded Fall, Denby and Daugherty from congressional investigation and have enabled them to despoil the nation of Teapot Dome, and all in the guise of taking “care that the Laws be faithfully executed”!48

Berger notes that America’s Continental Congress adopted the view of British politician William Pitt in “expressly provid[ing] for legislative access to all papers in the Department of Foreign Affairs, even those of a ‘secret nature.’” 49 President Washington acted in accord with this sentiment with regard to national security information; even after the Jay Treaty — which resolved lingering issues between the United States and Great Britain following the Revolutionary War — became “clamorously assailed” by the public, the President “felt constrained to put the ‘se­cret’ information before the Senate, disclaiming any ‘disposition’ (claim of privi­lege) to withhold any information that either House had a ‘right’ to require.”50 Though presidents have, over time, changed their tune on this point,51 the Su­preme Court has never spoken directly on the right of the Executive Branch to withhold information regarding security or foreign relations matters from Con­gress under the doctrine of executive privilege.52 No less an authority than Judge Learned Hand has articulated the Washingtonian principle that Congress, “espe­cially now that appropriations for the armed forces are the largest items of the budget, should be allowed to inquire in as much detail as it wishes… in general about the conduct of the national defense.” 53

As for the assertion of executive privilege with regard to the nondisclosure of Executive Branch communications, both the OLC Reporting Act and the regime proposed in this paper would likely survive scrutiny in spite of Mukasey’s claims to the contrary. The issue has been addressed by the Supreme Court with regard to congressional disclosures exactly once, in the landmark Watergate-era case of United States v. Nixon.54 Though the Court recognized the right of a president to assert executive privilege over intra-branch communications as constitutional, it pointedly noted that the privilege was “qualified,”55 and articulated a holding es­sentially sympathetic to the D.C. Circuit Court’s observation the previous year in Nixon v. Sirica that the “application of executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case.” 56

In the wake of United States v. Nixon, a president who attempted to invoke executive privilege to protect internal communications would, if haled into the courts, be forced to disclose the material were the party requesting it able to “make an adequate showing of need.”57 Historically speaking, executive privilege in all forms was a rare occurrence prior to the second half of the 20th century: be­tween 1929 and 1939 it was employed all of three times,58 contrasted with at least 130 invocations between 1964 and 1973.59 The first attempted use of the privilege to withhold “‘conversations and communications’ between employees of the ex­ecutive branch” did not occur until 1954, when President Eisenhower asserted the right in a directive aimed at stifling the investigative escapades of Senator Jo­seph McCarthy.60 Given the paramount public interest in preventing the Executive Branch from implementing programs on the basis of secret law — as well as the scant historical and judicial foundations for the legal challenges Mukasey asserts as standing in the way of the OLC Reporting Act — an implementation-triggered regime would almost certainly pass constitutional muster.

Implications for Public Policy

Despite its near-total absence from mainstream political discourse, the stakes of OLC reporting reform are strikingly high from a policy perspective. The pub­lic outcry that erupted during President George W. Bush’s second term over the National Security Agency’s warrantless wiretapping program61 serves as an il­lustrative example of the practical implications of secret Executive Branch law.62 The controversial NSA policy of conducting electronic surveillance of American citizens and resident foreign nationals absent a warrant was made possible by an OLC opinion written by John Yoo, the same former deputy assistant attorney general who authored the so-called torture memos in 2002.63

The surveillance opinion — which, save for a handful of excerpted sentences released to the public in March 2011,64 remains confidential to this day65 — con­tained apparently intentional misrepresentations of the Foreign Intelligence Sur­veillance Act (FISA) and relied upon overt omissions of statutory language in order to legally empower the President to conduct warrantless surveillance in contravention of the Fourth Amendment and Congressional decree.66

Yoo’s memorandum laid the groundwork for an NSA policy dubbed by the Bush administration as the “Terrorist Surveillance Program,”67 an initiative that would come to be widely criticized as much for its overbroad scope and total clandestinity as for the threats it posed to basic and long-standing notions about American civil liberties.68 The program of warrantless surveillance of electronic communications involving American citizens — plainly unlawful in an ordinary legal context and expressly prohibited by an act of Congress69 — was thus rendered legal for Executive Branch purposes, enacted as a matter of policy, and kept secret for a time from Congress, all on the basis of an OLC opinion that “exhibit[ed] dis­regard for the lawyer’s role as crafter of persuasive argument on the basis of rel­evant legal authority” and which “seem[ed] clearly intended to sanction a policy that no court would ever consider.” 70

Given the controversy surrounding warrantless wiretapping, it is not dif­ficult to imagine the threat to conscionable, transparent policy-making posed by the current lack of a balanced and effective OLC reporting regime. An Executive Branch that is permitted to ignore, by way of undisclosed legal manipulations, any duly enacted Congressional statute it stands opposed to in order to justify a policy implementation that would otherwise be considered patently illegal is an obvious danger to the very notion of democratic governance. Under an implementation-triggered reporting system akin to the mechanism described herein, OLC would be free to issue opinions authorizing the President to act in contravention of FISA (or any other statute), but those opinions would have to have been made available to Congress prior to the implementation of any policy to which they lend sanction for them to have binding legal legitimacy. Alerted in advance to the prospect of programs such as warrantless wiretapping, the possible torture of enemy combat­ants, or any other potentially unlawful policy, Congress would at last be equipped with an indispensible and constitutionally critical weapon it presently lacks — the power to take action prior to the implementation of controversial policy measures.

Conclusion

The accumulation in one branch of the powers of both authoritative interpretation and execution of the laws is venom to a free society; this has been a bedrock prin­ciple of American government since the time of the country’s founding.71 While the Executive Branch is doubtlessly entitled to its view of the applicability of congressional statutes to its own personnel, the foundational tenets of our system of separated powers dictate that it is not entitled to breathe life into Executive programs that stand in direct opposition to Congress by way of secret legal sanc­tion. As Justice Robert Jackson famously expressed in Youngstown Sheet & Tube Co. v. Sawyer:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb… Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.72

To take Jackson’s claim seriously is to reject the notion that OLC opinions authorizing the actual implementation of programs engineered in contravention of duly enacted statutes can ever be withheld from Congress. America has already witnessed the troubling results that accompany nondisclosure in these situations. The employment of secret law which found its genesis in the so-called torture memos73 sparked a firestorm of criticism for effectively authorizing the use of torture by Executive personnel in the course of the War on Terror despite resting on a much-disparaged legal rationale.74 The experiences of the George W. Bush Administration alone are enough to compel an OLC reporting regime that force­fully and cogently codifies the distaste for secret law which is, and has always been, central to the American philosophy of governance.

It should be noted that the implementation trigger regime would properly function as a floor rather than as a ceiling when it comes to the appropriate level of OLC transparency. OLC’s current ‘best practices’ memorandum reflects this no­tion, asserting that the Office “operates from the presumption that it should make its significant opinions fully and promptly available to the public” in endeavoring to “[further] the interests of Executive Branch transparency, thereby contributing to accountability and effective government, and promoting public confidence in the legality of government action.” 75

A reporting mandate would be a safeguard of open government, to be sure, but it would represent only a baseline for disclosure upon which rests the general philosophy of OLC, a philosophy at its best when properly attuned to the mer­its of Executive transparency. Time will tell what, if any, mechanisms Congress chooses to implement with regard to the disclosure of future OLC opinions, but, regardless of the form, it is plainly in the best interests of our public policy and constitutional structure that they pursue — carefully, responsibly — a regime that brings to bear the promise of a society undefiled by the scourge of secret law.

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Acknowledgements

A version of this paper was written originally for David Barron’s “Lawyering for the President” course at Harvard Law School; I wish to thank Professor Barron — who himself served as Acting Attorney General in charge of OLC from January 2009 to July 2010 — for his guidance and insight, as well as the students in that course for many productive hours of thoughtful discussion.

Endnotes

1 William H. Rehnquist, The Old Order Changeth: The Department of Justice Under John Mitchell, 12 Ariz. L. Rev. 251, 252 (1970); see also Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 34 (2007) (“Philosophical attunement with the administration is legitimate…”).

2 Nancy V. Baker, Conflicting Loyalties: Law and politics in the Attorney General’s Office, 1789-1990 55 (1992).

3 Luther Huston, The Department of Justice 60 (1967); see also Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337, 338 (1993).

4 See Posting of Jack Balkin to Balkinization, available at http://balkin.blogspot.com/2009/02/is-office-of-legal-counsel.html (Feb. 18, 2009, 7:05 EST) (“[T]he OLC creates binding law for the Executive Branch. In theory, the President could decide to ignore the OLC’s opinions, but in fact he never does.”).

5 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1304 (2000).

6 See Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Asst. Atty. General, Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002).

7 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (citations omitted).

8 Administrative Procedure Act of 1946, Pub. L. No 79-404, 60 Stat. 237 (codified at 5 U.S.C. §§ 551-559, 701-706 (2006)); see also Sudha Setty, No More Secret Laws: How Transparency of Executive Branch Legal Policy Doesn’t Let the Terrorists Win, 57 U. Kan. L. Rev. 579, 626 (2008).

9 28 U.S.C. § 530D(a)(1) (2006) (“The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice establishes or implements a formal or informal policy to refrain from enforcing, applying, or administering any provision of any Federal statute… on the grounds that such provision is unconstitutional…”).

10 OLC Reporting Act of 2008, S. 3501, 110th Cong. § 2 (2008); Office of Legal Counsel Reporting Act of 2008, H.R. 6929, H.R. 278, 11th Cong. § 1 (2009).

11 148 Cong. Rec. S8860 (daily ed. Sep. 16, 2008) (statement of Senator Feingold).

12 Id.; and see OLC Reporting Act of 2008, § 2.

13 Opinion of the Att’y General, Michael Mukasey, Constitutionality of the OLC Reporting Act of 2008 (Nov. 14, 2008), available at http://www.usdoj.gov/olc/2008/olc-reporting-act.pdf.

14 Id. at 3.

15 Id. at 2; and see Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).

16 Id. at 4.

17 See Id. (“Section 2 of the bill would…;” require the Attorney General to submit to Congress…;” a report of any instance in which the Department issues an “authoritative legal interpretation” of “any Federal statute,” even if the legal construction has not risen, and may never rise, to the level of an Executive Branch policy not to enforce the statute in question…;” “Currently, 28 U.S.C. § 530D requires the Attorney General to report Department legal positions outside the litigation context only where the Department “establishes or implements a formal or informal policy”…;” “The bill would substantially expand the foregoing reporting obligations by requiring the Attorney General to report on legal advice on statutory construction that does not, and may never, result in a “formal or informal policy to refrain from enforcing” a federal statute on constitutional or other grounds.”).

18 148 Cong. Rec. at S8859-S8860.

19 Sears, 421 U.S. at 153.

20 See OLC Reporting Act of 2008.

21 See Id.

22 Secret law, which was called “repugnant” by Judge Richard Posner in Torres v. I.N.S., 144 F.3d 472, 474 (7th Cir. 1998), has been distinguished from “a source of ‘secret law’” in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 6770 F.2d 1051, 1117 (D.C. Cir. 1981) (citing Jordan v. U.S. Dept. of Justice, 591 F.2d 753 (D.C. Cir. 1978)).

23 Sterling Drug, Inc. v. F.T.C., 450 F.2d 698, 708 (D.C. Cir. 1971); and see generally Kenneth Culp Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967).

24 See, e.g., Goldsmith at 36 (“These executive branch precedents are ‘law’ for the executive branch…”).

25 Maxims used by interpreters of statutes in order to ascertain legislative meaning; not technical rules, but rather “axiom[s] of experience.” Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 293 (1956).

26 Constitutionality of the OLC Reporting Act of 2008 at 4-5.

27 U.S. v. Nixon, 418 U.S. 683, 705 (1974).

28 Id.

29 148 Cong. Rec. at S8860; 28 U.S.C. § 530D(c)(2) (2006).

30 See generally Nixon, 418 U.S. at 706 (“The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection…); and see U.S. v. Gillock, 445 U.S. 360, 373 (1980) (noting that “the genuine risk of inhibiting candor in the internal exchanges at the highest levels of the Executive Branch” was of less value than the judicial power to secure evidence in a criminal proceeding).

31 K. Davis, Administrative Law Treatise 114, 137 (Supp. 1970); see also Cox v. Dep’t of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978); Stokes v. Brennan, 476 F.2d 699, 701-2 (5th Cir. 1973); Hawkes v. IRS, 467 F.2d 787, 795 (6th Cir. 1972) (affirming Professor Davis’ observations on secret law).

32 See Wayne R. LaFave, Substantive Criminal Law § 5.6(e)(4), at 419 (2d ed. 2003); see also U.S. v. Urfer, 287 F.3d 663, 665 (7th Cir. 2002) (opinion of Judge Posner) (“If unreasonable advice of counsel could automatically excuse criminal behavior, criminals would have a straight and sure path to immunity.”).

33 See Posting of Marty Lederman to Balkinization, available at http://balkin.blogspot.com/2005/ 12/mccain-amendment-ugly.html (Dec. 16, 2005, 11:24 EST); and see Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (noting that imposing liability on Executive Branch officials who reasonably relied on Executive interpretations of the law would “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties…”).

34 See Note, The Immunity-Conferring Power of the Office of Legal Counsel, 121 Harv. L. Rev. 2086, 2092 (2008); see also U.S. Attorneys’ Manual, Title 9: Criminal Resource manual § 2055, available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02055.htm. These defenses include entrapment by estoppel, innocent intent, and the public authority defense. Entrapment by estoppel “applies when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official.” U.S. v. Howell, 37 F.3d 1197, 1204 (1994). Innocent intent requires that “(1) the defendant honestly believed that he was acting in cooperation with the government, and [that] (2) the government official or officials upon whose authority the defendant relied possessed actual authority to authorize his otherwise criminal acts.” U.S. v. Fulcher, 250 F.3d 244, 253 (4th Cir. 2001). The public authority defense applies to “defendants who have acted in reasonable reliance on a government agent’s authority to engage him or her in a covert governmental activity.” See The Immunity-Conferring Power of the Office of Legal Counsel at 2096; see also U.S. v. Pitt, 193 F.3d 751, 756 (3d Cir. 1999).

35 See, e.g., Mary Alice Baish, Obama Administration Scorecard, 14 AALL Spectrum 7 (2009-2010); see also President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies (Jan. 21, 2009), available at http://www.whitehouse.gov/the_press_office/ TransparencyandOpenGovernment/.

36 See 148 Cong. Rec. at S8862.

37 See Eric Lichtblau, Obama Names 4 for Justice Jobs in Break From Bush Path, N.Y. Times (Jan. 6, 2009), available at http://www.nytimes.com/2009/01/06/us/politics/06justice.html.

38 See Jeff Zeleny, G.O.P. Captures House, but Not Senate, N.Y. Times (Nov. 2, 2010), available at http://www.nytimes.com/2010/11/03/us/politics/03elect.html.

39 See, e.g., Deirdre Walsh, What’s at stake in the House: Hostility ‘on nitroglycerin,’ cnn.com, available at http://www.cnn.com/2010/POLITICS/11/01/house.at.stake/index.html.

40 Constitutionality of the OLC Reporting Act of 2008 at 3.

41 Id.

42 Id.

43 Egan, 484 U.S. at 527; and see Constitutionality of the OLC Reporting Act of 2008 at 2.

44 Id.

45 Id.

46 Id.

47 Snepp v. U.S., 444 U.S. 507, 509 (1980) (former CIA agent attempting to publish a book about his experiences); U.S. v. Robel, 389 U.S. 258, 267 (1967) (member of a Communist organization denied employment at a shipyard that had been classified as a defense facility); U.S. v. Reynolds, 345 U.S. 1, 10 (1953) (widows of civilians killed in crash of Air Force plane seeking accident report); Totten v. U.S. 92 U.S. 105, 106 (1876) (Civil War spy claiming breach of contract for services rendered to President Lincoln).

48 Raoul Berger, Executive Privilege v. Congressional Inquiry, 12 UCLA L. Rev. 1287, 1290 (1964-1965) (citations omitted).

49 Id. at 1291.

50 Id. at 1291 (citations omitted).

51 The first unequivocal assertion of Executive Privilege as a means to withhold information from Congress did not occur until forty-six years after the creation of the American presidency, when President Jackson denied a congressional request for information concerning fraud in the sale of lands, ironically on the grounds that the information would be used by Congress in secret session rather than as part of a public investigation. See Norman Dorsen and John H.F. Shattuck, Executive Privilege, the Congress, and the Courts, 35 Ohio St. L.J. 1, 12 (1974).

52 See David B. Frohnmayer, The Separation of Powers: An Essay on the Vitality of a Constitutional Idea, 52 Or. L. Rev. 211, 227 (1972-1973).

53 Learned Hand, The Bill of Rights 17-8 (1958); and see Berger at 1312.

54 Emily Berman, Executive Privilege Disputes between Congress and the President: A Legislative Proposal, 3 Alb. Gov’t L. Rev. 741, 751 (2010); and see Nixon, 418 U.S. at 684.

55 Nixon, 418 U.S. at 706-13.

56 Nixon v. Sirica, 487 F.2d 700, 716 (D.C. Cir. 1973); and see Id.

57 Berman at 752; Nixon, 418 U.S. at 706-13; In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997).

58 Stephen W. Gard, Executive Privilege: A Rhyme without a Reason, 8 Ga. L. Rev. 809, 811 (1973-1974); and see M. McGreary, The Development of Congressional Investigatory Power 103 (1940).

59 Id.; and see Statement of Attorney General Richard G. Kleindienst, Hearings Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Gov’t. Operations and the Subcomm. on Separation of Powers and Administrative Practice & Procedures of the Senate Comm. on the Judiciary, 93d Cong. § 1 (1973).

60 Berger at 309.

61 Formally the President’s Surveillance Program; see “Unclassified Report on the President’s Surveillance Program,” Offices of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence (July 10, 2009), available at http://www.fas.org/irp/eprint/psp.pdf.

62 See, e.g., Adam Liptak and Eric Lichtblau, Judge Finds Wiretap Actions Violate the Law, N.Y. Times (Aug. 18, 2006), available at http://www.nytimes.com/2006/08/18/washington/18nsa.html.

63 See Memorandum for Alberto R. Gonzales.

64 See Memorandum for the Attorney General, from John C. Yoo, Dep. Asst. Atty. General (Nov. 2, 2001), available at https://webspace.utexas.edu/rmc2289/OLC%20131.FINAL.PDF.

65 See Posting of Oren Kerr to The Volokh Conspiracy, http://volokh.com/posts/1236036389.shtml (Mar. 2, 2009, 18:26 EST).

66 While the vast majority of Yoo’s surveillance memorandum has not been disclosed, the Department of Justice has made public a later memorandum which contains a detailed overview of the legal rationale used by Yoo in the former opinion; see Memo­randum from Steven G. Bradbury, Principal Dep. Asst. Atty. General, Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, at 6-8 (Jan. 15, 2009), available at http://www.justice.gov/opa/documents/memostatusolcopinions01152009.pdf; see also Bradley Lipton, A Call for Institutional Reform of the Office of Legal Counsel, 4 Harv. L. & Pol’y Rev. 249, 252 (2010).

67 See, e.g., John Diamond and David Jackson, Surveillance Program Protects Country, Bush Says, USA Today (Jan. 23, 2006), available at http://www.usatoday.com/news/washington/2006-01-23-bush_x.htm.

68 See, e.g., James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times (Dec. 16, 2005), available at http://www.nytimes.com/2005/12/16/politics/16program.html; and see John Cary Sims, How the Bush Administration’s Warrantless Surveillance Program Took the Constitution on an Illegal, Unnecessary, and Unrepentant Joyride, 12 UCLA J. Int’l L. & Foreign Aff. 170 (2007).

69 Foreign Intelligence Surveillance Act, Pub. L. No. 95-511, 92 Stat. 1783 (1978) (amended 2008).

70 Lipton at 253; see also W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 Cornell L. Rev. 67, 120 (2005).

71 See, e.g., The Federalist No. 47 (J. Madison) (“‘There can be no liberty where the legislative and executive powers are united in the same person…’ The magistrate in whom the whole executive power resides cannot of himself make a law…”) (citing Montesquieu, The Spirit of Laws 162-74 (T. Nugent trans. 1878) (1748)).

72 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).

73 See Memorandum for Alberto R. Gonzales.

74 See, e.g., Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1231 (2006); Harold Hongju Koh, Can the President be Torturer in Chief?, 81 Ind. L.J. 1145, 1149 (2006).

75 Memorandum for Attorneys of the Office, from David J. Barron, Acting Asst. Atty. General, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010), available at http://www.justice.gov/olc/preparation-opinions.html; recent published opinions of OLC can be found at http://www.justice.gov/olc/memoranda-opinions.html.


Cornell Institute for Public Affairs

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