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Marty Lederman and OLC Independence

May 23rd, 2009 No comments

SOmething bound to be humorous is what the new OLC will do when the Obama higher-ups tell them to modify their memos. Already, the AG has said he will ignore one of them (on the constitutionality of the DC-in-Congress bill). For future reference, this Marty Lederman blog post will be useful. It says:

At this point, Alberto Gonzales nevertheless insisted that Levin include in his December 30, 2004 opinion the footnote (No. 8) about how the legal analysis did not affect all previously approved techniques! It’s not clear why Levin assented to this — it’s an outrageous and inappropriate thing for a White House Counsel to do — but the footnote was included

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First, I should note that Lederman gives no sources his claim, even though he considers the action outrageous and noteworthy. So maybe he made it up. Whether he did or not, though, he is on record as objecting to the OLC modifying, even by the addition of clarifying notes, its memos in response to comments from other government agencies. We’ll see if he objects the next time the State Dept. or Treasury suggests that one of the OLC memos could use an extra paragraph, or has omitted a relevant case.

Recall that one of the criticisms of the Yoo torture memo, though maybe not one made by Lederman, is that it was not widely circulated for comment within government and was thus deprived of input that would have improved its legal reasoning. If he had circulated it, and the State Dept. had given Yoo convincing evidence that his analysis of the president’s wartime powers went too far, would Lederman have called it outrageous if Yoo had dropped that part of his memo? I myself think that is a good criticism, and see no problem with the OLC responding to comments from any source whatsoever.

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The Meaning of "Torture"

April 27th, 2009 1 comment

Kopel at VC has a good post on the legal meaning of “torture”. A UK case is relevant, especially for those who argue that we should use foreign standards.

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The Justice Dept. OLC

April 6th, 2009 No comments

IU law prof Dawn Johnsen has been nominated to be head of the Justice Dept.’s Office of Legal Counsel. A vote on her nomination has been delayed a few weeks by Senate Republicans. The news says this is because they don’t like her extreme pro-abortion views, or that this is part of some haggling over release of old Bush OLC memos. I just came across something else that seems relevant, though. Wikipedia says that the last Bush nominee for this job, Steven G. Bradbury, was nominated in June 2005, approved by the Senate committee five months later, and then was blocked for over three years by Senate Democrats from having a full Senate vote and remained acting but unconfirmed till the Administration ended in January 2009. Is there any payback going on? If so, Prof> Johnsen may have a few years to wait.

Categories: Justice Dept., law, OLC Tags: