The Torture Memo and Its Precursor

I came across a delicious pairing of OLC memos. I'll call them Memos A and B so as not to give away the punchline. I'll give you a clue: One is by Clinton (and Obama's) Dawn Johnsen. The other is by Bush's Jay Bybee, and John Yoo (but he doesn't have his name signed to it---Bybee was his boss).

Here are two excerpts:

Quote A1: "We have long recognized, and the Supreme Court has established a canon of statutory construction that statutes are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available. ...

This canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. ..."

Quote B1: "It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives....

Thus, where a statute does not by its express terms apply to the President, it may not be applied to him if doing so would raise a serious separation of powers concern...."

Okay. The two offices are agreed in principle. The OLC maintains continuity-- two professional lawyers giving good, lawyerly advice. (I happen to think it's a rotten idea to not let Congress constrain the President with statutes, but that's just me and the Constitution; I'm no lawyer.) But what would be a serious separation of powers concern?

Memo A says that it would seriously infringe on the separation of powers if Congress ordered the President to conduct war in a particular way. That memo is the most famous and controversial of the torture memos:

Quote A2: "Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority."
-----Office of Legal Counsel, Jay. S. Bybee, " Memorandum for Alberto R. Gonzales Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, " http://homepage.ntlworld.com/jksonc/docs/torture- doj-20020801.html (August 1, 2002, this web version May 17, 2008).

And what is the serious constitutional concern in Memo B, the Clinton one?

-- that requiring the President to notify nominees whose credit he checks that he's been looking over their financial record would infringe on his power to hire employees.

That's right-- the statute that threatens the separation of powers is the Consumer Credit Reporting Reform Act of 1996. (An act passed under the very President who is now objecting to its application to himself.) Here's a quote:

Quote B2: As noted above, section 2403(b)(3) of the CCRRA requires any person who uses a credit report for employment purposes to notify the subject of any adverse action based in whole or in part on the report. (1) To the extent this requirement were applied to the process under which potential nominees are considered by the President, it could impose a burden upon the unfettered nomination power accorded the President under the Constitution.
-----Office of Legal Counsel, Dawn Johnsen, "Application of Consumer Credit Reporting Reform Act of 1996 to Presidential Nomination and Appointment Process," http://www.usdoj.gov/olc/fcra_dk.htm (December 11, 1997).

What is especially peculiar is that Professor Johnsen has been a leading critic of the Torture Memos, claiming not just that they are wrong but that they are completely one-sided, poorly written, and leave out lots of relevant legal material. From a law review article by Professor Johnsen (Dawn E. Johnsen, "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power," forthcoming, UCLA Law Review, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002111 (July 2007)):

p. 1583. Measured by this standard, the Torture Opinion utterly fails. In what unmistakably is an advocacy piece, OLC abandoned fundamental practices of principled and balanced legal interpretation....

p. 1584. "Yoo remains almost alone in continuing to assert that the Torture Opinion was “entirely accurate” and not outcome driven, notwithstanding the Bush Administration’s extraordinary repudiation of the Opinion."

She forgets, however, that about ten pages earlier she had told us that though the OLC had rewritten the memo (in particular, Yoo went on to argue that even if Congress had expressly included the President, the President would not be bound by that law), the OLC had maintained every single one of the legal conclusions Yoo had come to. The OLC just pulled back on some of the arguments for those conclusions . Thus, if Yoo's lawyering was incompetent and outcome-driven, it at least got all the same answers as everyone in the OLC even after he left:

p. 1573: "On December 30, 2004, six months after the leak and public disavowal of the Torture Opinion, OLC issued a new opinion (Replacement Opinion) that provides a more careful and accurate analysis of the federal anti-torture statute.... The definition of torture remains extremely narrow, and a footnote reassures recipients of earlier OLC advice—namely, the CIA— that the changes in analysis and tone do not affect the bottom line: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”"

Perhaps the most common criticism of the Torture Memos by Professor Johnsen and others is this:

p. 1585: "The Opinion also fails to cite and apply the watershed Supreme Court opinion most relevant to assessing the constitutionality of the statute: Justice Jackson’s three-part framework set forth in Youngstown Sheet & Tube Co. v. Sawyer."

Note that her credit report memo didn't cite the case either. Both the torture and credit report memos are about whether the President is bound by statutes that don't expressly mention him and that constrain his constitutional powers. If Youngstown is relevant to one, it's relevant to the other.

But I looked it up, and I see that it's not relevant to either.

Youngstown is not about a President violating an Act of Congress. It is about a President seizing control of steel mills without any Congressional authorization, under the excuse that he is doing it in furtherance of a war effort. The famous opinion by Judge Jackson makes no claim that the President acted contrary to any Act of Congress. Jackson just argues, rather unconvincingly, that Congress's lack of authorizing legislation showed its opposition.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby= CASE&court=US&vol=343&page=579.

Finally, Prof. Johnsen's gives an interesting test for whether an OLC opinion is outcome driven or not:

p. 1584: One way to test Yoo’s claim is to consider whether OLC would have written the opinion in the same manner if the President had preferred to receive an OLC opinion that concluded the federal anti-torture statute actually did tie his hands.

In Yoo's case, the answer is clear: if he was running the OLC, his opinion would have been the same even if Obama was President. That's because Yoo was on record even before he was appointed as being an advocate for a broad view of Presidential power. In fact, that's no doubt why Yoo was appointed to the job, and a President who wanted to tie his own hands would pick someone else.

How about applying the test to Dawn Johnsen's credit report memo? If President Clinton had wanted the OLC to require him to tell nominees that he was turning them down because of a bad credit report, would she have written the same opinion? I don't suppose she's ever written on credit reports, but what she was best known for was for being an advocate of a broad view of rights to privacy-- in the area of abortion. So one might have been surprised that she would find separation of powers to trump privacy.

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Andrew McCarthy in National Review, "Lawyer’s Lawyer, Radical’s Radical Meet Obama DOJ nominee Dawn Johnsen " (March 2009) noticed the Johnsen credit report memo too.

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Here are the relevant part of Memos A and B in more detail. First, from Memo A (sorry for any confusion here: it's a Section B of Memo A)

B. Interpretation to Avoid Constitutional Problems

As the Supreme Court has recognized, and as we will explain
further below, the President enjoys complete discretion in the
exercise of his Commander-in-Chief authority and in conducting
operations against hostile forces. ¶

Because both “[t]he executive power and the command of the
military and naval forces is vested in the President,” the {p.34}
Supreme Court has unanimously stated that it is “the President
alone [] who is constitutionally invested with the entire charge of
hostile operations.” Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87
(1874) {justia, altlaw, lexisone} (emphasis added). ¶

That authority is at its height in the middle of a war.

In light of the President’s complete authority over the conduct of
war, without a clear statement otherwise, we will not read a
criminal statute as infringing on the President’s ultimate authority
in these areas. ¶

We have long recognized, and the Supreme Court has established
a canon of statutory construction that statutes are to be
construed in a manner that avoids constitutional difficulties so
long as a reasonable alternative construction is available. See, e.g.,
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 504 (1979))
(“[W]here an otherwise acceptable construction of a statute
would raise serious constitutional problems, [courts] will construe
[a] statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.”). ¶

This canon of construction applies especially where an act of
Congress could be read to encroach upon powers constitutionally
committed to a coordinate branch of government. See, e.g.,
Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation
omitted) (“Out of respect for the separation of powers and the
unique constitutional position of the President, we find that
textual silence is not enough to subject the President to the
provisions of the [Administrative Procedure Act]. We would
require an express statement by Congress before assuming it
intended the President’s performance of his statutory duties to
be reviewed for abuse of discretion.”); Public Citizen v. United
States Dep’t of Justice, 491 U.S. 440, 465-67 (1989) (construing
Federal Advisory Committee Act not to apply to advice given by
American Bar Association to the President on judicial
nominations, to avoid potential constitutional question regarding
encroachment on Presidential power to appoint judges).

In the area of foreign affairs, and war powers in particular, the
avoidance canon has special force. See, e.g., Dep’t of Navy v.
Egan, 484 U.S. 518, 530 (1988) (“unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to
intrude upon the authority of the Executive in military and
national security affairs.”); Japan Whaling Ass’n v. American
Cetacean Soc’y, 478 U.S. 221, 232-33 (1986) (construing federal
statutes to avoid curtailment of traditional presidential
prerogatives in foreign affairs). ¶

We do not lightly assume that Congress has acted to interfere
with the President’s constitutionally superior position as Chief
Executive and Commander in Chief in the area of military
operations. See Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453
U.S. 280, 293-94 (1981)). See also Agee, 453 U.S. at 291
(deference to Executive Branch is “especially” appropriate “in the
area ... of ... national security”).

In order to respect the President’s inherent constitutional
authority to manage a military campaign against al Qaeda and its
allies, Section 2340A must be construed as not applying to
interrogations undertaken pursuant to his Commander-in-Chief
authority. ¶

As our Office has consistently held during this Administration
and previous Administrations, Congress lacks authority under
Article I to set the terms and conditions under which the
President may exercise his authority as Commander in Chief to
control {p.35} the conduct of operations daring a war. ¶

See, e.g., Memorandum for Daniel J. Bryant, Assistant Attorney
General, Office of Legislative Affairs, from Patrick F. Philbin,
Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Swift Justice Authorization Act (Apr. 8, 2002); Memorandum for
Timothy E. Flanigan, Deputy Counsel to the President, from
John C. Yoo, Deputy Assistant Attorney General, Office of Legal
Counsel, ¶

Re: The President’s Constitutional Authority to Conduct Military
Operations Against Terrorists and Nations Supporting Them
(Sep. 25, 2001) (“Flanigan Memorandum”); ¶

Memorandum for Andrew Fois, Assistant Attorney General,
Office of Legislative Affairs, from Richard L. Shiffrin, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Defense
Authorization Act (Sep. 15, 1995). ¶

As we discuss below, the President’s power to detain and
interrogate enemy combatants arises out of his constitutional
authority as Commander in Chief. A construction of Section
2340A that applied the provision to regulate the President’s
authority as Commander-in-Chief to determine the interrogation
and treatment of enemy combatants would raise serious
constitutional questions. ¶

Congress may no more regulate the President’s ability to detain
and interrogate enemy combatants than it may regulate his ability
to direct troop movements on the battlefield. ¶

Accordingly, we would construe Section 2340A to avoid this
constitutional difficulty, and conclude that it does not apply to
the President’s detention and interrogation of enemy combatants
pursuant to his Commander-in-Chief authority.

This approach is consistent with previous decisions of our Office
involving the application of federal criminal law. ¶

For example, we have previously construed the congressional
contempt statute not to apply to executive branch officials who
refuse to comply with congressional subpoenas because of an
assertion of executive privilege. In a published 1984 opinion, we
concluded that

if executive officials were subject to prosecution for criminal
contempt whenever they carried out the President’s claim of
executive privilege, it would significantly burden and
immeasurably impair the President’s ability to fulfill his
constitutional duties. Therefore, the separation of powers
principles that underlie the doctrine of executive privilege also
would preclude an application of the contempt of Congress
statute to punish officials for aiding the President in asserting his
constitutional privilege.

Prosecution for Contempt of Congress of an Executive Branch
Official Who Has Asserted A Claim of Executive Privilege, 8 Op.
O.L.C. 101, 134 (May 30, 1984) {Lexis, Westlaw}. ¶

Likewise, we believe that, if executive officials were subject to
prosecution for conducting interrogations when they were
carrying out the President’s Commander-in-Chief powers, “it
would significantly burden and immeasurably impair the
President’s ability to fulfill his constitutional duties.” ¶

These constitutional principles preclude an application of Section
2340A to punish officials for aiding the President in exercising his
exclusive constitutional authorities. Id. {p.36}

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And here's Dawn Johnsen's memo. Her conclusion is based entirely on the one argument that Congress binds the President only if the Act says so expressly, when separation of powers is an issue, so her memo is shorter and I'll give it in its entirety:

      The Consumer Credit Reporting Reform Act of 1996
("CCRRA"), 15 U.S.C.A. § 1681s-2 (West Supp. 1997), offers
heightened protections to individuals whose credit histories are
being examined by prospective employers. Section 2403(b)(3) of
the CCRRA amends section 604 of the Fair Credit Reporting Act
("FCRA") to require any person "using a consumer report for
employment purposes" to notify the consumer prior to taking
"any adverse action based in whole or in part on the report." Id.
You have requested our advice whether section 2403(b)(3) would
apply to the process used by the President in considering
individuals for nomination and appointment with the advice and
consent of the Senate or appointment to his personal staff. As
explained briefly below, we conclude that this provision of the
CCRRA does not apply to the President's decisions affecting
such positions.

      It is a well settled principle of law, applied frequently by both
the Supreme Court and the executive branch, that statutes that
do not expressly apply to the President must be construed as not
applying to him if such application would involve a possible
conflict with his constitutional prerogatives. See, e.g., Franklin v.
Massachusetts, 505 U.S. 788, 800-01 (1992). This Office has
described that principle as a "clear statement rule." See
Memorandum for Jack Quinn, Counsel to the President, from
Walter Dellinger, Assistant Attorney General, Office of Legal
Counsel, Re: Application of 28 U.S.C. Section 458 to Presidential
Appointments of Federal Judges at 3 (Dec. 18, 1995) ("Quinn
memo") (copy attached); see also Armstrong v. Bush, 924 F.2d
282, 289 (D.C. Cir. 1991), cert. denied, 117 S. Ct. 1842 (1997). As
the Quinn memo explains in greater detail, the clear statement
rule has two sources. First, a fundamental canon of statutory
interpretation requires that statutes be construed to avoid raising
serious constitutional questions. Quinn memo, at 3. Second, the
constitutional principle of separation of powers assures a division
of power among the federal government's three coordinate
branches. The clear statement rule "exists in order to protect
'th[is] usual constitutional balance' of power." Id. (citing Gregory
v. Ashcroft, 501 U.S. 452, 460-61 (1991)).

      Thus, where a statute does not by its express terms apply to
the President, it may not be applied to him if doing so would
raise a serious separation of powers concern. We first consider
the possible application of the CCRRA to the process by which
the President nominates non-inferior officers, subject to advice
and consent of the Senate. Application of the CCRRA in this
context would raise a serious separation of powers concern, for it
could interfere with a power committed to the President by the
Constitution.

    The Appointments Clause provides that the President

    shall nominate, and by and with the consent of the Senate,
shall appoint Ambassadors, other Public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United
States . . . but the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.

      U.S. Const. art. II, § 2, cl. 2. The Constitution thus vests in
the President alone the power to nominate non-inferior officers
of the United States. Although Congress has an important role in
the appointment of such officers by virtue of the Senate's
assigned responsibility to advise and consent with regard to such
appointments, any attempt by Congress to exercise power over
the process of nominating a particular individual to a non-inferior
office would raise a serious constitutional question. See Quinn
memo at 9; Federal Election Comm'n v. NRA Political Victory
Fund, 6 F.3d 821, 824 (D.C. Cir. 1993), cert. dismissed, 513 U.S.
88 (1994).

      As noted above, section 2403(b)(3) of the CCRRA requires
any person who uses a credit report for employment purposes to
notify the subject of any adverse action based in whole or in part
on the report. (1) To the extent this requirement were applied to
the process under which potential nominees are considered by
the President, it could impose a burden upon the unfettered
nomination power accorded the President under the
Constitution. The Constitution does not compel the President to
disclose to a nominee the reasons for his decision not to
nominate that person; indeed, it does not require that the
President have articulable reasons for not nominating someone.
To the extent section 2403(b)(3) would require an assessment
whether information contained in a credit report contributed to
an adverse decision, and then would further require
communication of that fact to a potential nominee, section
2403(b)(3) effectively places limitations on the President's
constitutional prerogative to nominate non-inferior officers of
the United States. We need not here decide whether Congress
may, consistent with the Constitution, impose such limitations; it
is enough for purposes of this analysis to conclude that such a
restriction potentially conflicts with the President's constitutional
responsibilities. Where, as here, a potential conflict exists, the
clear statement rule requires that the statutory requirement be
explicitly applied to the President.

      Neither the language nor the legislative history of the
CCRRA, however, contains any such express statement. The
definitions of "person" and "employment purposes" in section
603 of the FCRA do not explicitly refer to the President or to
presidential nominations. Nor does any other provision of the
FCRA or the CCRRA state specifically that the requirements of
these statutes apply equally with respect to the President as to
other potential employers. Respect for the separation of powers
and the "unique constitutional position of the President" require
such an explicit textual reference. Franklin v. Massachusetts, 505
U.S. at 800-01. The legislative history of the CCRRA similarly is
silent with respect to its specific application to presidential
nominees. What is clear from that history is that the primary
focus of the CCRRA was to grant the ordinary consumer greater
control over the use of his or her consumer credit report by
consumer reporting agencies. See 142 Cong. Rec. S11868, S11869
(daily ed. Sept. 30, 1996) (statement of Sen. Bryan, original
sponsor of CCRRA). The absence of any clear statement
including the President within the scope of the CCRRA, together
with the serious constitutional questions that such an
interpretation would raise, compels us to conclude that the
CCRRA does not apply to the President's use of credit
information with respect to potential presidential nominees for
non-inferior offices.

      We turn now to two other categories of appointees --
inferior officers appointed by the President with the Senate's
advice and consent and appointees to positions (other than
those requiring advice and consent) on the President's personal
staff. Application of the CCRRA to these categories of
appointees, at least in some circumstances, might well raise
separation of powers concern. However, we need not reach this
issue. We have already concluded that section 2403(b) would not
apply to the President, because it could do so only if there were a
clear statement to that effect. Given that conclusion, we would
be rewriting the statute if we to conclude that the President had
to follow the statute with regard to particular classes of potential
appointees. Therefore, our conclusion that the clear statement
rule prohibits application of section 2403(b)(3) to presidential
nominations for non-inferior offices applies equally to all
categories of individuals under consideration by the President for
nomination or appointment.

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