Saturday, May 23, 2009


Marty Lederman and OLC Independence

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

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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