The Reason the Administration Won't Turn Over Its Legal Opinions

Setting up a potential confrontation prior to next week's Senate hearings on the legality of the President's warrantless surveillance program, the Administration is refusing to comply with the Judiciary Committee's request that it turn over its internal legal opinions on the NSA program. The New York Times reports:

The Justice Department is balking at the
request so far, administration officials said,
arguing that the legal opinions would add
little to the public debate because the
administration has already laid out its legal
defense at length in several public settings.

But the legality of the program is known to
have produced serious concerns within the
Justice Department in 2004, at a time when
one of the legal opinions was drafted.
Democrats say they want to review the
internal opinions to assess how legal thinking
on the program evolved and whether
lawyers in the department saw any concrete
limits to the president's powers in fighting
terrorism. . . .

Several Democrats and at least one
Republican have pressed the Justice
Department in recent days to give them access,
even in a closed setting, to the internal
documents that formed the legal foundation of
the surveillance program. But when asked
whether the classified legal opinions would be
made available to Congress, a senior Justice
Department official said Wednesday, "I don't
think they're coming out."

Why is the Administration so reluctant to allow Congress to see these memos? My hunch is that it's because the Administration's current legal posture looks very different than the one it originally adopted when it authorized this program in late 2001. I suspect very strongly that the Administration's primary argument for the legality of the program--that Congress authorized the President to take such measures when it passed the AUMF--is of relatively recent vintage. The Times reports that there are two key opinions:

The first Justice Department opinion is thought
to have been written in late 2001 or early
2002 by John Yoo, a strong proponent of
expanded presidential powers in wartime. The
second opinion, officials said, was drafted by
Jack Goldsmith, another senior department
official who later left to teach at Harvard. It
came in 2004 at a time some senior officials at
the Justice Department were voicing concerns
about the program's legal foundation and
refusing to sign off on its reauthorization.

My strong suspicion is that Yoo's original legal opinion did not even mention the AUMF. I doubt that Yoo would ever concede that the president's authority depended on an act of Congress. Instead, the memorandum likely focused on the very same arguments Yoo asserted in his March 14, 2003 memo on the treatment of detainees (not to be confused with his more narrow--and now infamous--2002 "torture memo.") The March 2003 memo, which has never been publicly released, apparently asserted that the president had the authority to disregard various criminal statutes.

As I've pointed out over the last few days, the behavior and public statements of Bush administration officials (including the President) in the period immediately following the passage of the AUMF are entirely inconsistent with their current argument that the AUMF provided the statutory authority to conduct surveillance outside of FISA. If they had been relying on that argument at the time, I suspect they would have been more careful about what they said.

This article in Newsweek the other day described how Goldsmith and Deputy Attorney General James Comey began to question the administration's theories of executive power in late 2003 to early 2004. In late 2003, Goldsmith took the unprecedented step of withdrawing the OLC's support for the March 2003 Yoo memorandum. When Yoo's 2002 torture memo leaked in 2004, Goldsmith and Comey publicly disavowed it. Both of these moves greatly angered others in the Administration, particularly in the Office of the Vice President. I suspect that Yoo's opinion supporting the legality of the NSA spying program relied on virtually identical arguments to those contained in his March 2003 memo. When the OLC withdrew its support for that memo, it likely did the same thing for the surveillance memo. That would explain why Comey refused to sign off on the program when it came time to reauthorize it. The legal opinion supporting it had been withdrawn.

We know that the program was eventually reauthorized, but only after the Justice Department imposed a number of procedural changes and, apparently, issued a new legal opinion (authored by Goldsmith himself). I suspect that the AUMF argument made its first appearance in this 2004 memorandum. The AUMF argument may have represented a compromise between the Justice Department and the White House. From a legal standpoint, the AUMF argument is just as weak as the Article II argument, but at least it implies that Congress is the ultimate source of authority and is therefore more benign and less threatening to the very concept of the rule of law. Given the circumstances--with all the pressure of the White House bearing down on them--this was probably the best Goldsmith and Comey could do.

Both Goldsmith and Comey have since left the Administration, which may explain the re-emergence of Yoo's more extreme ideas regarding exective power which are again on display in the DoJ's recent white paper. So, long story short, the Administration likely doesn't want to release the relevant legal opinions because 1) the earlier opinion doesn't mention the AUMF theory, which is now the administration's primary legal argument, and 2) the later opinion casts doubt on the validity of Yoo Article II theory, which the Administration is now offering as an alternative justification for the program.

As a final note, I'll leave you with a sentiment expressed by Professor Jack Balkin today at his blog (I suspect Comey and Goldsmith would agree):

The rule of law, as I have said before, is a
political value as well as a legal value. It is a
political value of restraint that we take upon
ourselves so that we can demand the same
restraint from others when the power of the
state rests in their hands. The rule of law can
be, and has been, used to perpetrate or
apologize for many injustices in human history.
But it has one saving grace-- that it offers us a
place to stand when we object to the
aggrandizement of power by those who are
utterly convinced that they come to us as
saviors. For many years conservatives warned
us about would-be saviors of the left, who
would sweep away legal restraints to pursue
their vision of a just society. It is time to stand
up to the would-be saviors of the right, who
seek to concentrate unaccountable power in
order to pursue their vision of national security.

Amen to that.