Overruled


Mixed Messages on Torture
April 16, 2009, 9:42 pm
Filed under: Ian | Tags: ,

abu_ghraibI’m glad that President Obama decided to release four more of the infamous OLC torture memos.  As many people have already noted, the memos provide the kind of window into a sadist’s mind which make you question your own humanity.  I pray that I never become so broken that I could methodically ponder how to exploit a captive’s fear of stinging incects by locking him in a coffin with bugs, or that I would conclude that nearly drowning another human being makes me anything other than an abomination.  I also pray that Congress takes swift action to remove Judge Jay Bybee, the Ninth Circuit judge who signed many of these memos while he headed OLC.

I am also troubled, however, by the fact that the Obama Administration appears less committed to transparency than the President’s selection of Dawn Johnsen to head OLC implies.  Five years ago, Dawn co-authored a document entitled “Principles to Guide the Office of Legal Counsel,” in which she argued that “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”  Dawn’s statement of principles is nuanced, but it begins with the presumption that disclosure should be the rule, never the exception:

OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive  claims of executive authority.  Transparency also promotes confidence in the lawfulness of governmental  action. Making executive branch law available to the public also adds an important voice to the   development of constitutional meaning–in the courts as well as among academics, other commentators, and the public more generally–and a particularly valuable perspective on legal issues regarding which the executive branch possesses relevant expertise. There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters. . . .  In all events, OLC should in each administration consider the  circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.

So Dawn would apply “a presumption in favor of publication” in all cases.  Though she also recognizes that some OLC advice regarding “national security matters” may overcome this presumption, the presumption itself is applied in all cases.

Compare Dawn’s statement with President Obama’s statement announcing the release of the torture memos, which applies the opposite presumption:

While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

Rather than starting with a presumption of disclosure, President Obama’s analysis begins with the presumption that, because these memos concern national security matters, they should presumptively be treated as secret.  Although he ultimately concludes that the memos should be disclosed, he does so because “exceptional circumstances . . . require their release.”  In other words, while Dawn requires exceptional circumstances to keep any OLC advice secret, the President will only release advice related to national security when such exceptional circumstances demand it.

Needless to say, I think Dawn has the better part of this argument.  The President’s national security powers include the power to spy, the power to detain, and the power to kill.  Although I disagree strongly that these powers are as limitless as President Bush believed, protecting a nation requires the President to occasionally take swift and violent action against a threat, and President Obama rightfully should be given a great deal of latitude to do so when it becomes necessary.

The most important check on this awesome power is the ability of the people to learn of a President’s abuses and become outraged—even the Bush Administration rescinded several of John Yoo’s torture memos once sunshine exposed their horrific contents to the public.  But when a President can hide behind a presumption against transparency, sunlight cannot shine on his actions, and the President has little incentive to resist the corrupting force of awesome, unchecked power.

So while the distinction between Dawn’s presumption favoring disclosure and President Obama’s presumption favoring secrecy is subtle, it is very significant.  Once Dawn is confirmed, I hope she is sucessful in restoring her views on transparency to OLC.

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