What Possible Grounds Are There For Withholding OLC Opinions?
I somehow missed this story this other day:
The good news is that I have a feeling Lederman's views will eventually prevail. Why? Because he's on the transition team:
A senior Justice Department official said Tuesday that "99.8 percent" of the department's work with President-elect Barack Obama's transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team's request to review classified legal opinions related to secret CIA and National Security Agency programs.In other words, they're withholding the highly-controversial opinions that authorized torture, warrantless surveillance, etc. What reason are they giving for withholding these memos?
At the roundtable, Mukasey said OLC opinions are issued at the request of other agencies with their "own equity or interest in the information."That's nonsense. As Marty Lederman (a former OLC lawyer) has stressed continually over the last few years, the argument for keeping OLC memos from the public (at least in redacted form) is tenuous in itself. There is no defensible reason whatsoever for withholding those memos from Obama's Justice Department transition team. They're going to see them in a month anyway. Why be so difficult about it now? Is there some reason they're more worried about the content of those memos leaking now (as opposed to a month from now)?
"And so what we try to do is determine whether, and to what extent, we can clear that information and try to do it as quickly as we can so as to get it to the transition team so that they're aware of all the things that they need when they take over on the 21st," Mukasey said, according to a transcript provided by the department.
The good news is that I have a feeling Lederman's views will eventually prevail. Why? Because he's on the transition team:
Obama's Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr's David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.I hope he stays on after the transition.
posted by A.L. at 1:18 PM
11 Comments:
Any chance that the concern here is that any pardons in the cards might be more costly politically? That is, preemptive pardons might generate less attention than pardons after we see what, exactly, is in these opinions.
Obviously they want to get rid of whatever evidence there is of crimes committed by the Bush administration before it's too late...
AL- DOJ presumably is hoping that the CIA and the NSA get involved in the issue of disclosing these memos, since they likely have a very different view on public disclosure than does Lederman. The people on the Obama transition teams for these agencies may very well be on the side of the agency professionals on this.
Anyway, that was my assumption when I brought this story to your attention a couple of days ago.
I assume they want the extra few weeks while they keep the shredders running.
I agree with Hank Gillette.
How much does anyone want to bet this is nothing more than how the federal bureaucracy works? Fill out the requisite number forms, get the requisite number of management types not on their Christmas holidays already (or everyone waits) to sign for the forms, snail mail them through the various agencies where more forms and signatures are needed, blah, blah, blah? Think I'm kidding? How many companies (and they do actually run more efficiently than the federal government) seem to require a signed form authorizing a trip to the bathroom?
By Jan. 20, they should have everything, right?
Until recently, Wal-Mart refused its employees bathroom breaks. Admittedly, they didn't require forms. Another example of the efficiency of private enterprise.
If this is now the norm for the federal bureaucracy, then (apropos of the Roman empire discussion of a previous thread) we've skipped the entire early Roman empire period entirely and are deep into the Byzantine era.
At least under Bush.
Following the theory that we, the people, can't see the rules under which our government operates will kill this republic.
If this is now the norm for the federal bureaucracy, then (apropos of the Roman empire discussion of a previous thread) we've skipped the entire early Roman empire period entirely and are deep into the Byzantine era.
At least under Bush.
Oh, this whole federal bureaucracy being akin to the Byzantine bureaucracy started way before Bush.
Until recently, Wal-Mart refused its employees bathroom breaks.
You might want to add a little to that. They probably couldn't take bathroom breaks in between their regular break times, which is a whole lot different than saying they weren't allowed bathroom breaks.
SteveIL,
If they got break times. My wife has been medical staff, and most of my family is blue and lower end white collar. That required break somehow always comes at the end of your shift, unless you raise a stink, and if you complain, you're a disruptive worker and have to worry about keeping your job.
(note, not saying you are arguing this, but this is where my thoughts lead me to next)
You could leave, but then when you explain to your next prospective employer that you demanded your legal worker's rights, somehow you never are the one chosen....and then the unemployment benefit starts running out, and you have to do something, which usually includes sucking it up.
Right to work sounds so much better than right to choose which employer to suck up to to keep paychecks coming in.
(end rant)
Back to historical precedents, if we could use the Chinese model, would we at least get qualified bureaucrats? And didn't their imperial system have some pretty severe penalties for official corruption?
The only possible reason for secrecy in these opinions is to prevent the general public from discovering how flimsy were the rationales for the actions of this administration. The only possible reason for withholding them from the transition team is just to delay the inevitable storm of protest until it becomes someone else's problem.
Steveil,
WalMart is going to pay millions of dollars in settlement and punitive damages because they violated Minnesota state labor law, which requires 20 minute bathroom breaks for every shift (look up the details.)
I think people are confused here. The public will never be privy to those documents.
The team will get to see them, but they still remain classified.
Two way different issues here.
One. Preventing incoming administration access.
Two. Turning Classified information and programs over to the public.
You also have to remember what the CIA and NSA do. Think about the broad spectrum of things they do. With very little being in the US. You are talking about access to all of their programs.
And yes, this is how Federal Govt works. Bush, Obama, Clinton, Reagan, whoever. It will always be this way.
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