Ross L. Weiner · February 2009
77 GEO. WASH. L. REV. 524 (2009)
Two OLC opinions, written in the wake of the September 11 attacks, are illustrative of the need for increased oversight in the OLC. The first (the “Status Memo”) is a memorandum detailing whether the federal courts would have jurisdiction to hear habeas petitions filed by prisoners housed at Guantanamo Bay. The second (the “Torture Memo”) is a memorandum on the standards of conduct by which interrogators investigating individuals involved in the war on terror would be guided. The differences between the two opinions are revealing: the Status Memo is balanced, cites relevant case law for both sides of the argument, and eventually concludes that while it believes the federal courts would not have jurisdiction, it is a close case on which reasonable judges could disagree. Conversely, the Torture Memo is legally flawed; lacks relevant case law; and was widely criticized by legal scholars, many of whom believed the memo’s authors never expected the memo to be made public.
In the Torture Memo, the President’s Commander in Chief powers are exaggerated, novel defenses for interrogators are created out of thin air, and the definition of “torture” is narrowly crafted to ensure that American conduct, if ever investigated, would not legally be considered “torture.” Only a handful of lawyers, nearly all of whom lacked expertise in wartime powers, ever laid eyes on this opinion before it became binding on the entire executive branch. The Torture Memo, however, was eventually declassified, and the outcry was instantaneous.
Although this situation was extraordinary, it revealed a flaw in our constitutional system of checks and balances, where the OLC was able, without oversight, to legalize a policy in a way that was harmful to America’s interests at home and abroad. Going forward, increased oversight is required to ensure that the past is not prologue. A layer of oversight must be added to the OLC to ensure that its legal advice is “an accurate and honest appraisal of applicable law.” To accomplish this, the OLC must begin publishing the majority of its opinions, with exceptions for those that truly require confidentiality. These changes will help ensure that even in times of national crisis, the structure of the OLC will have the proper mechanisms in place to prevent a similar abuse of power from occurring in the future.
In Part I, this Note will discuss the background of the OLC and its role in shaping the legal course of this country. It will look at the ethical considerations with which the OLC must deal and the minimal oversight mechanisms currently in place. In Part II, the Note will examine the Status Memo and the Torture Memo, which provide a juxtaposition between proper and improper opinion writing. And in Part III, the Note will examine the lack of oversight at the OLC, and will propose a solution to fix this lack of oversight.
