The Future of the OLC
James Madison reminded us that enlightened statesmen will not always be at the helm. One solution to this problem is to design institutions to fulfill checking functions, which in turn requires those institutions to be staffed with, well to a large extent, enlightened statesmen who are competent and serve with integrity. No different than elected officials, institutional staff will not always be enlightened either. One such institution, the Office of Legal Council, which provides binding legal opinions for the executive branch, has struggled to conform to enlightenment ideals. Indeed, a predominate enlightenment ideal was the abolition of torture by governing officials (see Lynn Hunt’s historical account). Yet, as we all know, this very office provided legal authorization for practices all but a very few consider torture, and even more, argued that existing legal limits on the use of torture would not bind the President in exercise of his Commander in Chief powers. One of the criticisms of the office as it operated under Jay Bybee and John Yoo was that it no longer served its function as an independent institution designed to ensure that the President fulfills a constitutional duty to “take care that the laws be faithfully executed.” Rather, the office began to provide the President the advice he wanted to hear. Or, in the words of Anthony Lewis regarding the infamous torture memo: “The memo reads like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memorandum.”
Dawn Johnsen, President Obama’s pick to lead the OLC, was compelled to withdraw because the Senate refused to act on her nomination. She writes a compelling case today in the Washington Post for filling that post soon. She, with others (including the current acting Assistant Attorney General, David Barron), advocate returning the office to its independent role in providing accurate legal analysis for the executive branch. With others, she has articulated a statement of the key principles necessary for restoring the independence and integrity of the OLC. If we cannot have more robust institutional reform of the kind Bruce Ackerman suggests—a Senate confirmable executive tribunal whose members serve as independent judges for the executive branch—we can at least have a fully functioning independent institution as Johnsen argues. Without reform that begins with leadership of the kind Johnsen would have provided, we are left vulnerable to the next unenlightened official to staff the institution.