Obama Transparency And The OLC

The NYTimes writes:

We were horrified to be reminded that the nation still has not plumbed the depths of the Bush administrationís abuses. At the same time, it was a relief to see President Obama beginning to make good on his promise of greater transparency.

But what of the Obama Administration's continued assertion of outlandish theories of Executive power regarding the "states secrets" privilege? As Glenn Greenwald wrote about the Obama Administration's brief (PDF) in the al Haramain case:

The brief filed by Obama on Friday afternoon has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding.

More . . .

The NYTimes editorial notes:

The released memos were written by the Justice Departmentís Office of Legal Counsel, which is supposed to ensure policies comply with the Constitution and the law. They make it chillingly clear how quickly that office was rededicated to finding ways for Mr. Bush to evade, twist or ignore both.

So where is the Obama Administration's Office of Legal Counsel? Are they being read into the Constitutional claims being made by the Obama Department of Justice in the Al-Haramain case? At its website, the Office of Legal Counsel describes its mission as follows:

By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

(Emphasis supplied.) Did the Obama OLC sign off on this assertion in the Obama DOJ's latest Al Haramain brief?

Egan makes clear that the authority to control access to classified information is based on the Presidentís Article II powers under the Constitution and, whatever role Congress may have in regulating in this area, Article II does not grant the Judicial Branch authority to make determinations that usurp the Presidentís Article II powers. Thus, reading ďauthorized holderĒ under the Executive Order to include a Judicial officer, and allowing such an officer to overrule the Executiveís determinations, would itself be contrary to the authority outlined above.

Because if the OLC signed on to this, I would like to ask Marty Lederman, now with the Obama OLC, when he changed his opinion on these matters? In September 2008, Lederman wrote:

1. A Well-Founded View of Presidential Power. To advance the first commitment, the next President should initiate a process to ensure that the new Administration withdraws and repudiates the reasoning of memoranda and opinions that overstate the Presidentís constitutional powers and that minimize those of Congress and the courts. . . . The next President should also affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent. . . .

2. Openness and Accountability. To advance the commitment to openness and accountability, we offer several recommendations. OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. . . .

Congress, the Courts, and the public are unable to check against abuses of executive power if they do not know about them. In this regard, the experience of the past eight years is instructive. It was only years later and due to leaked information that we learned of highly consequential opinions advising that the Executive Branch was not bound to comply with statutory limits on its power, including opinions relating to the treatment of detainees, the Presidentís domestic surveillance program, and the use of secret prisons overseas for detention and interrogation.

. . . The next President should also commit to review the Executive Branchís practice in asserting privileges, including executive privilege. . . . The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program.[26] The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.

(Emphasis supplied.) The opinions expressed by Lederman in September 2008 can not be squared with the assertions made by the Obama DOJ in the Al-Haramain case. The questions are obvious - did the Obama DOJ run its constitutional assertions in its latest Al Haramain brief through the OLC? And if so, what did the OLC say? Are we now getting a new OLC that is "supposed to ensure policies comply with the Constitution and the law . . . rededicated to finding ways for Mr. [Obama] to evade, twist or ignore both[?]"

Speaking for me only

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    it is (5.00 / 2) (#1)
    by lilburro on Wed Mar 04, 2009 at 08:23:54 AM EST
    pretty inexplicable.  If it were in Greg Craig's job description to advise on these matters, I would blame him, but I don't think you can on this one.

    Maybe it's Holder...I found his reaction to Guantanamo completely ridiculous - "the facilities are good ones?"  Are they swallowing everything the Pentagon tells them whole?

    Let's be real here (5.00 / 1) (#2)
    by Steve M on Wed Mar 04, 2009 at 08:41:30 AM EST
    I'm glad Obama released the memos, but you score no transparency points for releasing memos authored by the prior administration which you don't intend to follow!  Transparency means that you know how your government is operating now, not that you'll know 8 years from now when some other President decides to tell you.

    Not Only (5.00 / 2) (#3)
    by The Maven on Wed Mar 04, 2009 at 08:52:14 AM EST
    is the failure to repudiate the Bush Administration position regarding the state secrets "privilege" in Mohamed v. Jeppesen Dataplan and now Al Haramain deeply disturbing all on its own, for reasons that have already been articulated, but it would seem to dovetail with the concerns I (and many others) had had that whatever good Obama might seek to do in the sphere of justice and constitutional powers would merely be via the exercise of his own authority -- as opposed to endorsement of legislation that would rightly and permanently restore the balance between the branches of government (the judiciary in particular).

    It is precisely this type of reliance on making personal decisions rather than voluntarily becoming bound to statutory frameworks that exposes the continuing danger here.  What George Bush did, Barack Obama may (or may not) seek to undo, in what amounts to a guise of the unitary executive theory (thank you, David Addington, et al.).  But without an act of Congress -- or a Supreme Court eager to correct Executive overreach, itself an unlikely concept in the foreseeable future -- any subsequent president will have the tools at his or her disposal to reinstitute any of these pernicious measures and secret laws, as Greenwald has described them.  Even that assumes that Obama will eventually abandon this misguided quest to protect presidential prerogatives, and that is far from certain at this point.

    "Act of Congress' (5.00 / 4) (#4)
    by Ben Masel on Wed Mar 04, 2009 at 09:37:43 AM EST
    I caught up with Sen. Feingold Sunday. He's going to give the Administration 'a few more weeks" to come up with legislation amending the overreach on last summer's FISA Amendments before introducing his own.

    How Un-American (5.00 / 4) (#5)
    by bselznick on Wed Mar 04, 2009 at 09:55:27 AM EST
    Osama claimed his victims on 9/11 and his followers danced in the streets to celebrate the evil deed.  But none of them could lessen our freedom or touch our Constitution.  Only an American President and Vice President gripped by fear and cowering together in some undisclosed location could use their personal cowardliness and lack of faith in our Constitution to destroy our freedoms.   The OLC gave Bush and Cheney what they wanted, the legality to do that which the terrorist could only dream about.  

    We read these legal opinions are shocked, those who seek to do us harm read them and smile.

    Maybe (none / 0) (#6)
    by squeaky on Wed Mar 04, 2009 at 11:42:36 AM EST
    They are waiting for Dawn Johnsen to get confirmed by the full senate.  None of this makes any sense, considering what they said and wrote before.

    It makes sense when you (none / 0) (#7)
    by oldpro on Wed Mar 04, 2009 at 11:49:18 AM EST
    actually GET power and control and decide you don't want to give any of it up...y'know, just in case...

    Maybe For You (none / 0) (#8)
    by squeaky on Wed Mar 04, 2009 at 12:01:35 PM EST
    But it still does not make any sense to me. These people were hired because of their positions. And Obama has plenty of power without BushCo excesses. There are unanswered questions for me. Time will tell, I hope.

    Ahem...no, squeaky... (none / 0) (#9)
    by oldpro on Wed Mar 04, 2009 at 12:40:10 PM EST
    not for me.  For THEM.  

    It's hubris, pure and simple.  Everybody's on 'our side' until they get some power...but THEN...it's a case of "hey, let's rethink this...we know what we're doing and we know what's important, so no point in taking any arrows out of this quiver unless we have to!"


    Obama's OLC nominations (none / 0) (#10)
    by ai002h on Wed Mar 04, 2009 at 01:19:37 PM EST
    definetely do not square with the need for retaining the expansionist powers of the Bush presidency, or being obstructionist when it comes to the investigating the previous adminstration. I'm deeply disturbed but will side with Squeaky on this one, I'll wait for more information to come out.

    I'm starting to think that (none / 0) (#12)
    by Anne on Wed Mar 04, 2009 at 09:38:25 PM EST
    the people he is appointing are window-dressing, designed to make people think, "if these people are on record saying X, and now they're on board with postions that seem 180 degrees different, then it must be ok."

    Which is insane.  Waaaay too kabuki even for the government.

    For me, anyway, I think it is really a classic case of Obama believing on Monday that he supports or opposes something, and on Tuesday wakes up with a different opinion about it, because, you know, he can't settle on what it is he really believes - so the question is, is this Obama, or is this OLC, or what?

    And isn't it disturbing as all get-out that we can't figure it out - that there's no way to reconcile these positions with what has been said up til now?


    Maybe this explains the mystery (none / 0) (#11)
    by revelator on Wed Mar 04, 2009 at 01:50:29 PM EST
    Hon. Greg Craig
    Office of the White House Counsel
    The White House
    1600 Pennsylvania Avenue
    Washington D.C. 20500
    February 22, 2009
    RE: Your position regarding advising the President
    on the pending testimony of Karl Rove
    Dear Attorney Craig:
    I represent Dana Jill Simpson, an attorney in Rainsville, Alabama, who testified before Congress in September 2007, regarding Karl Rove's involvement in the U.S. Justice Department prosecution of Gov. Don Siegelman.
    She is very concerned that you have violated the Rules of Professional Conduct 1.6 , 1.7 and 1.10, while citing 1.9 to decline representation. She is equally concerned about the person or persons to whom you have divulged her confidential information. Your recent efforts on the part of negotiating a settlement between Congress and Karl Rove have been noted, as well as your efforts to delay matters before the D.C. Court of Appeals, regarding Rove and other Bush administration officers claiming executive privilege.
    For this reason, she is asking that you step down from your position as White House Counsel, at least in all matters dealing with the Bush administration. Further, she is asking that you furnish her with a list of each and every person with whom you have communicated regarding this matter; that is, Miss Simpson's affidavit, testimony, knowledge, research and any other matters touching or information furnished by Miss Simpson.
    In recapping the events linking you and Miss Simpson:
    1.) Upon information and belief, Gov. Don Siegelman or his agent made the direct call to you at your law firm, Williams & Connolly, soliciting your pro bono representation of Ms. Simpson, with regard to her affidavit about Karl Rove's involvement in Siegelman's prosecution.
    2.) According to Ms. Simpson, you called her up to four times on or about March 16-17, 2007, and you faxed her your resume.
    3.) She initially asked, "Before we really start this, do you have any contacts with George Bush, Karl Rove, Don Siegelman or Bob Riley?"
    4.) You indicated you did not and said, "Tell me who this is about."
    5.) Your initial conversation with Ms. Simpson lasted about 10 to 15 minutes.
    6.) In three conversations of nearly two hours, you extracted particular details of her involvement, and you asked her specifically about the length of time and character of her contact with Karl Rove, the extent of her work with the GOP and her knowledge of U.S. District Judge Mark Fuller's owner-interest in Doss Aviation, a major federal contractor, and matters dealing with lobbyist G. Stewart Hall's then-Federalist Group and the steering of contracts to Fuller's company and companies related to Gov. Bob Riley's son, Rob Riley.
    7.) After this extensive questioning, which included another session for the questions you had formulated, you announced that you couldn't represent her because you had represented Sen. Richard Shelby during the 2004-2005 investigations of his alleged national security leaks.
    8.) Ms. Simpson says that you related to her that Sen. Shelby had told you " in confidence" that he "owned and controlled Doss Aviation out of the federal courthouse in Montgomery," and that Doss Aviation's, 1 Church Street, mail was delivered to Shelby's Senate office, even before Fuller was appointed judge. You told her that you "didn't really like" Shelby, that the Doss connection had not been discovered during the previous hearing, but that, "It will come up, if you really go into it."
    9.) You failed to mention to Miss Simpson, however, that you were a friend of Karl Rove, had shared drinks with Karl Rove, that your law firm, Williams & Connolly, was representing Vice President Cheney on Scooter Libby's role in the Valerie Plame case in which Rove was involved; that your firm has advised the White House not to turn over GOP emails regarding the firing of nine U.S. Attorneys. Nor did you disclose your firm's involvement in defending Iran-Contra figures, which you knew or should have known play a key role in the current military contracts routed to Doss Aviation.
    Now, I understand your firm is handling Karl Rove's book deal. Currently, your former close associate and mentor, Emmet Flood is representing former President Bush in executive privilege matters before the D.C. Court of Appeals with regard to political firings of U.S. Attorneys who failed to act on orders to prosecute Democrats prior to elections - matters in which you are directly involved in your role as President Obama's White House Counsel.
    You had a duty to disclose your relationship with Rove to Miss Simpson before she revealed the details of her involvement, because you knew from initial contacts that you had a conflict. You have a duty now to turn over any material relating to disclosure of that information as well as to allocute to whom you passed the knowledge. She also inquires whether you or anyone to you contacted is responsible for recommending legal services from Washington attorney David Laufman, also known as "Bush's Cleaner," or Montgomery Republican Tommy Gallion, who after months of intensive discussions with Ms. Simpson, indicated he was in regular contact with President Bush on her matter.
    Ms. Simpson asks that you withdraw from any representation of the President on these matters due to your conflicts and those of Williams & Connolly in this area. If you respect the legal Code of Professional Conduct, you must take action to remedy the damage you have done to Ms. Simpson, Mr. Shelby and the legal profession.
    We would appreciate an answer no later than three business days.
    Priscilla Black Duncan
    Attorney for Jill Simpson