U.S. SENATOR PATRICK LEAHY

Leahy: Administration Stonewalling On Torture Policy Documents

(WEDNESDAY, Dec. 22) – U.S. Sen. Patrick Leahy (D-Vt.) on Wednesday challenged the Bush Administration to explain its refusal to disclose pertinent documents and memorandum relating to its policies and practices governing the treatment and interrogation of prisoners in U.S. custody. Leahy’s repeated requests in recent months to the Department of Justice (DOJ) and White House Counsel Alberto Gonzales, among others, have not been fulfilled. On Wednesday, Leahy pressed officials to explain their refusal to disclose these documents even as former DOJ attorneys expressed concern about the role the DOJ Office of Legal Counsel (OLC) played in advising the President on the matter.

“The legal memoranda generated to justify and excuse torture were wrong. I share the frustration of so many that this Administration seems too willing to alter longstanding practices and policies in order to reach its desired result,” Leahy said. “I have for months been asking for these materials but this Administration will not even provide an index to the elected representatives of the American people. This type of secrecy contributes to the manipulation of the law and the misuse of government authority.”

Leahy is the ranking Democratic member of the Senate Judiciary Committee, which is holding confirmation hearings next month on Gonzales’ nomination to be attorney general. Leahy has said he intends to ask Gonzales about his role in formulating the Administration’s policies and practices relating to prisoners in U.S custody.

Below are two letters Leahy sent Wednesday responding to the Administration’s most recent refusal to disclose the requested documents. For your reference, following is a cover letter and memorandum from former OLC attorneys sent to the White House, among others, offering guiding principles on the OLC’s role in advising the President. Also attached are the Administration’s responses rejecting Leahy’s requests for disclosure of these documents [From Deputy Council To The President Leitch | From Assistant Attorney General Moschella ].  Leahy’s initial letters from earlier this year requesting the documents are available as PDF's [I | II] .

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December 21, 2004

The Honorable Alberto R. Gonzales
Counsel to the President
The White House
Washington, DC 20500

Dear Judge Gonzales:

I received a letter from your office dated December 17, 2004, signed by your deputy, David G. Leitch. While this letter purports to respond to my letters to you dated May 17 and June 15, 2004, it neither answers the questions I raised, nor provides the documents I requested, and it raises several new questions that I hope you will answer promptly.

First, in declining to release documents, the Leitch letter refers to three documents that have been obtained by the press and posted on the Internet, and includes copies “for your convenience” in an accompanying binder. By so doing, is the White House authenticating these documents?

Second, one of the documents included in the binder accompanying Mr. Leitch’s letter was a draft memorandum dated January 25, 2002, that you prepared for the President, regarding the application of the Geneva Conventions to “enemy prisoners” in the war against terrorism. I specifically asked for the final version of this memorandum in my letter to you dated June 15, 2004, but Mr. Leitch declined to make it available, citing a leading Supreme Court case on executive privilege. Is the President claiming executive privilege with regard to this and other requested documents? If not, on what basis are you declining to provide these documents?

Sincerely,

PATRICK LEAHY
Ranking Democratic Member

cc: The Honorable Arlen Specter

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December 21, 2004

The Honorable William E. Moschella
Assistant Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Mr. Moschella:

I received by fax a copy of your letter dated December 16, 2004, regarding the Department of Justice’s refusal to release opinions by the Office of Legal Counsel (OLC). Your letter declined to release the OLC documents that I had requested in my letter dated October 29, 2004, citing deliberative process and confidentiality. Contradicting your letter, the Department posted one of the OLC documents on its public website.

These developments raise several questions:

1. What is the process by which DOJ determines that an OLC opinion shall be released? Please produce to me all documents relating to that determination.

2. When did the Department determine that the September 15, 2001, opinion should be made public?

3. When was the opinion placed on the Department’s website?

4. With regard to other OLC opinions that you have declined to provide, please specify for each one whether you are claiming executive privilege.

I anticipate and will appreciate a prompt, thorough and responsive reply.

Sincerely,

PATRICK LEAHY

Ranking Democratic Member

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Memorandum

To: Attorney General John Ashcroft, Judge Alberto R. Gonzales, and Acting Assistant Attorney General Daniel B. Levin

From: Signatories to Attached Document

Re: Attached Principles to Guide the Office of Legal Counsel

Date: December 21, 2004

As President Bush begins his second term in office, we respectfully offer for your consideration the enclosed set of “Principles to Guide the Office of Legal Counsel.” Prompted in part by concerns about the August 1, 2002 OLC memorandum "Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A,” disclosed last Summer, the undersigned former OLC attorneys have engaged in a series of conversations about that memorandum and also more generally about the practices OLC should follow in advising the President and the Executive Branch on the legality of contemplated action. In preparing these written guidelines, we in large part drew upon what we believe are longstanding, desirable OLC practices in administrations of both political parties. The Office of Legal Counsel plays a central role in upholding the rule of law in this great nation, and we take pride in our service there. We stand ready to be of any assistance in maintaining that important tradition.

Principles to Guide the Office of Legal Counsel

December 21, 2004

The Office of Legal Counsel (OLC) is the Department of Justice component to which the Attorney General has delegated the function of providing legal advice to guide the actions of the President and the agencies of the executive branch. OLC’s legal determinations are considered binding on the executive branch, subject to the supervision of the Attorney General and the ultimate authority of the President. From the outset of our constitutional system, Presidents have recognized that compliance with their constitutional obligation to act lawfully requires a reliable source of legal advice. In 1793, Secretary of State Thomas Jefferson, writing on behalf of President Washington, requested the Supreme Court’s advice regarding the United States’ treaty obligations with regard to the war between Great Britain and France. The Supreme Court declined the request, in important measure on the grounds that the Constitution vests responsibility for such legal determinations within the executive branch itself: “[T]he three departments of government … being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions seems to have been purposely as well as expressly united to the executive departments.” Letter from John Jay to George Washington, August 8, 1793, quoted in 4 The Founders’ Constitution 258 (Philip B. Kurland & Ralph Lerner, eds. 1987).

From the Washington Administration through the present, Attorneys General, and in recent decades the Office of Legal Counsel, have served as the source of legal determinations regarding the executive’s legal obligations and authorities. The resulting body of law, much of which is published in volumes entitled Opinions of the Attorney General and Opinions of the Office of Legal Counsel, offers powerful testimony to the importance of the rule-of-law values that President Washington sought to secure and to the Department of Justice’s profound tradition of respect for the rule of law. Administrations of both political parties have maintained this tradition, which reflects a dedication to the rule of law that is as significant and as important to the country as that shown by our courts. As a practical matter, the responsibility for preserving this tradition cannot rest with OLC alone. It is incumbent upon the Attorney General and the President to ensure that OLC’s advice is sought on important and close legal questions and that the advice given reflects the best executive branch traditions. The principles set forth in this document are based in large part on the longstanding practices of the Attorney General and the Office of Legal Counsel, across time and administrations.

OLC’s core function is to help the President fulfill his constitutional duty to uphold the Constitution and “take care that the laws be faithfully executed” in all of the varied work of the executive branch. OLC provides the legal expertise necessary to ensure the lawfulness of presidential and executive branch action, including contemplated action that raises close and difficult questions of law. To fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful. To do so would deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action. OLC’s tradition of principled legal analysis and adherence to the rule of law thus is constitutionally grounded and also best serves the interests of both the public and the presidency, even though OLC at times will determine that the law precludes an action that a President strongly desires to take.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government–the courts and Congress–and constitutional limits on the exercise of governmental power.

The President is constitutionally obligated to “preserve, protect and defend” the Constitution in its entirety–not only executive power, but also judicial and congressional power and constitutional limits on governmental power–and to enforce federal statutes enacted in accordance with the Constitution. OLC’s advice should reflect all relevant legal constraints. In addition, regardless of OLC’s ultimate legal conclusions concerning whether proposed executive branch action lawfully may proceed, OLC’s analysis should disclose, and candidly and fairly address, the relevant range of legal sources and substantial arguments on all sides of the question.

In formulating its best view of what the law requires, OLC always should be mindful that the President’s legal obligations are not limited to those that are judicially enforceable. In some circumstances, OLC’s advice will guide executive branch action that the courts are unlikely to review (for example, action unlikely to result in a justiciable case or controversy) or that the courts likely will review only under a standard of extreme deference (for example, some questions regarding war powers and national security). OLC’s advice should reflect its best view of all applicable legal constraints, and not only legal constraints likely to lead to judicial invalidation of executive branch action. An OLC approach that instead would equate “lawful” with “likely to escape judicial condemnation” would ill serve the President’s constitutional duty by failing to describe all legal constraints and by appearing to condone unlawful action as long as the President could, in a sense, get away with it. Indeed, the absence of a litigation threat signals special need for vigilance: In circumstances in which judicial oversight of executive branch action is unlikely, the President–and by extension OLC–has a special obligation to ensure compliance with the law, including respect for the rights of affected individuals and the constitutional allocation of powers.

As discussed under principle 3, jurisdictional and prudential limitations do not constrain OLC as they do courts, and thus in some instances OLC appropriately identifies legal limits on executive branch action that a court would not require. Beyond this, OLC’s work should reflect the fact that OLC is located in the executive branch and serves both the institution of the presidency and a particular incumbent, democratically elected President in whom the Constitution vests the executive power. What follows from this is addressed as well under principle 5. The most substantial effects include the following: OLC typically adheres to judicial precedent, but that precedent sometimes leaves room for executive interpretive influences, because doctrine at times genuinely is open to more than one interpretation and at times contemplates an executive branch interpretive role. Similarly, OLC routinely, and appropriately, considers sources and understandings of law and fact that the courts often ignore, such as previous Attorney General and OLC opinions that themselves reflect the traditions, knowledge and expertise of the executive branch. Finally, OLC differs from a court in that its responsibilities include facilitating the work of the executive branch and the objectives of the President, consistent with the requirements of the law. OLC therefore, where possible and appropriate, should recommend lawful alternatives to legally impermissible executive branch proposals. Notwithstanding these and other significant differences between the work of OLC and the courts, OLC’s legal analyses always should be principled, thorough, forthright, and not merely instrumental to the President’s policy preferences.

OLC’s tradition of general adherence to judicial (especially Supreme Court) precedent and federal statutes reflects appropriate executive branch respect for the coordinate branches of the federal government. On very rare occasion, however, Presidents, often with the advice of OLC, appropriately act on their own understanding of constitutional meaning (just as Congress at times enacts laws based on its own constitutional views). To begin with relatively uncontroversial examples, Presidents at times veto bills they believe are unconstitutional and pardon individuals for violating what Presidents believe are unconstitutional statutes, even when the Court would uphold the statute or the conviction against constitutional challenge. Far more controversial are rare cases in which Presidents decide to refuse to enforce or otherwise comply with laws they deem unconstitutional, either on their face or in some applications. The precise contours of presidential power in such contexts are the subject of some debate and beyond the scope of this document. The need for transparency regarding interbranch disagreements, however, should be beyond dispute. At a bare minimum, OLC advice should fully address applicable Supreme Court precedent, and, absent the most compelling need for secrecy, any time the executive branch disregards a federal statutory requirement on constitutional grounds, it should publicly release a clear statement explaining its deviation. Absent transparency and clarity, client agencies might experience difficulty understanding and applying such legal advice, and the public and Congress would be unable adequately to assess the lawfulness of executive branch action. Indeed, federal law currently requires the Attorney General to notify Congress if the Department of Justice determines either that it will not enforce a provision of law on the grounds that it is unconstitutional or that it will not defend a provision of law against constitutional challenge.

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. OLC should consider the views regarding disclosure of the client agency that requested the advice. Ordinarily, OLC should honor a requestor’s desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation. 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. Finally, as discussed in principle 5, Presidents, and by extension OLC, bear a special responsibility to disclose publicly and explain any actions that conflict with federal statutory requirements.

OLC systems and processes can help maintain high legal standards, avoid errors, and safeguard against tendencies toward potentially excessive claims of executive authority. At the outset, OLC should be careful about the form of requests for advice. Whenever possible, agency requests should be in writing, should include the requesting agency’s own best legal views as well as any relevant materials and information, and should be as specific as circumstances allow. Where OLC determines that advice of a more generally applicable nature would be helpful and appropriate, it should take special care to consider the implications for its advice in all foreseeable potential applications. Also, OLC typically should provide legal advice in advance of executive branch action, and not regarding executive branch action that already has occurred; legal “advice” after the fact is subject to strong pressures to follow an advocacy model, which is an appropriate activity for some components of the Department of Justice but not usually for OLC (though this tension may be unavoidable in some cases involving continuing or potentially recurring executive branch action). OLC should recruit and retain attorneys of the highest integrity and abilities. OLC should afford due respect for the precedential value of OLC opinions from administrations of both parties; although OLC’s current best view of the law sometimes will require repudiation of OLC precedent, OLC should never disregard precedent without careful consideration and detailed explanation. Ordinarily OLC legal advice should be subject to multiple layers of scrutiny and approval; one such mechanism used effectively at times is a “two deputy rule” that requires at least two supervising deputies to review and clear all OLC advice. Finally, OLC can help promote public confidence and understanding by publicly announcing its general operating policies and procedures.

The involvement of affected entities serves as an additional check against erroneous reasoning by ensuring that all views and relevant information are considered. Administrative coordination allows OLC to avail itself of the substantive expertise of the various components of the executive branch and to avoid overlooking potentially important consequences before rendering advice. It helps to ensure that legal pronouncements will have no broader effect than necessary to resolve the question at hand. Finally, it allows OLC to respond to all serious arguments and thus avoid the need for reconsideration.

9. OLC should strive to maintain good working relationships with its client agencies, and especially the White House Counsel’s Office, to help ensure that OLC is consulted, before the fact, regarding any and all substantial executive branch action of questionable legality.

Although OLC’s legal determinations should not seek simply to legitimate the policy preferences of the administration of which it is a part, OLC must take account of the administration’s goals and assist their accomplishment within the law. To operate effectively, OLC must be attentive to the need for prompt, responsive legal advice that is not unnecessarily obstructionist. Thus, when OLC concludes that an administration proposal is impermissible, it is appropriate for OLC to go on to suggest modifications that would cure the defect, and OLC should stand ready to work with the administration to craft lawful alternatives. Executive branch officials nonetheless may be tempted to avoid bringing to OLC’s attention strongly desired policies of questionable legality. Structures, routines and expectations should ensure that OLC is consulted on all major executive branch initiatives and activities that raise significant legal questions. Public attention to when and how OLC generally functions within a particular administration also can help ensure appropriate OLC involvement.

OLC sometimes provides legal advice that is not intended to inform the formulation of executive branch policy or action, and in some such circumstances an advocacy model may be appropriate. One common example: OLC sometimes assists the Solicitor General and the litigating components of the Department of Justice in developing arguments for presentation to a court, including in the defense of congressional statutes. The Department of Justice typically follows a practice of defending an act of Congress against constitutional challenge as long as a reasonable argument can be made in its defense (even if that argument is not the best view of the law). In this context, OLC appropriately may employ advocacy-based modes of analysis. OLC should ensure, however, that all involved understand whenever OLC is acting outside of its typical stance, and that its views in such cases should not be taken as authoritative, binding advice as to the executive branch’s legal obligations. Client agencies expect OLC to provide its best view of applicable legal constraints and if OLC acts otherwise without adequate warning, it risks prompting unlawful executive branch action.

The following former Office of Legal Counsel attorneys prepared and endorse this document:

Walter E. Dellinger, Assistant Attorney General 1993-96

Dawn Johnsen, Acting Assistant Attorney General 1997-98; Deputy AAG 1993-97

Randolph Moss, Assistant Attorney General 2000-01, Acting 1998-2000; Deputy AAG 1996-98

Christopher Schroeder, Acting Assistant Attorney General 1997; Deputy AAG 1994-96

Joseph R. Guerra, Deputy Assistant Attorney General 1999-2001

Beth Nolan, Deputy Assistant Attorney General 1996-99; Attorney Advisor 1981-85

Todd Peterson, Deputy Assistant Attorney General 1997-99; Attorney Advisor 1982-85

Cornelia T.L. Pillard, Deputy Assistant Attorney General 1998-2000

H. Jefferson Powell, Deputy Assistant Attorney General and Consultant 1993-2000

Teresa Wynn Roseborough, Deputy Assistant Attorney General 1994-1996

Richard Shiffrin, Deputy Assistant Attorney General, 1993-97

William Michael Treanor, Deputy Assistant Attorney General 1998-2001

David Barron, Attorney Advisor 1996-99

Stuart Benjamin, Attorney Advisor 1992-1995

Lisa Brown, Attorney Advisor 1996-97

Pamela Harris, Attorney Advisor 1993-96

Neil Kinkopf, Attorney Advisor 1993-97

Martin Lederman, Attorney Advisor 1994-2002

Michael Small, Attorney Advisor 1993-96

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