The Opinions by the Attorney General and the Office of Legal Counsel: How and Why They Are Significant

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Abstract

Although much research has been done on the opinions issued by the Office of Legal Counsel (OLC) regarding the power of President Bush to order enhanced interrogations of captured enemy combatants, and the power of the President, as commander in chief, to act to address the events of September 11, 2001, and prevent future attacks, there has been much less research on explaining the source of the power and significance of OLC opinions within the Executive Branch. This article will focus on the historical basis and legal significance of opinions by the Attorney General, and later those of the OLC. This article will explain why and how opinions on the meaning and applicability of the law issued by the Attorney General, dating from those of General Randolph to General Holder and those of the OLC, have historically been quasi-judicial in approach and determinative within the Executive Branch.

I. INTRODUCTION

After the attacks of September 11, 2001, the Bush Administration's Department of Justice OLC issued a series of memos that stated that the President had the exclusive constitutional power (1) to detain enemy combatants, (2) to bypass the Uniform Code of Military Justice (UCMJ) and initiate military commissions to try such combatants, and (3) to determine what types of techniques could be initiated to secure information from captured enemy combatants from the military operations in Afghanistan and Iraq. (1) Subsequent to the issuance of these memos much ink has been spilled on the legality of the actions made by the Bush Administration. (2) What all of these critiques have not included is an analysis of why the opinions by the Attorney General and the OLC (3) were determinative within the executive branch.

Every President from Washington to Obama has received legal advice regarding a proposed action or policy. (4) Foreign policy and domestic policy under our Constitution is measured by its legality. All presidents seek to act within the law and the Constitution. The Constitution itself requires and obligates the President to "take [c]are that the [1]aws [are] faithfully executed[.]" (5) It is this responsibility that requires the President to first determine what the law requires and then to act accordingly. (6) Historically, the main agency within the executive branch to aid the President in both maintaining and obeying the law has been the Office of the Attorney General. (7) This article will focus on two issues. First, what is the historical purpose and authority of the Office of the Attorney General? (8) And second, how has the Office of the Attorney General, and later the OLC, developed into the plenary legal opinion agency within the executive branch? This article traces the history of the Office of the Attorney General and the OLC to meet a gap in the literature on presidential legal policymaking and the role of the rule of law that governs executive decision-making; specifically, it is a detailed review of the origin and purpose of the Office of the Attorney General and the why that underlies the purpose and unique role of this office to act as defender of the rule of law (9) regardless of political and policy expediencies, (10) After the attacks of 9/11, it was the OLC, not President Bush himself, which received almost unprecedented attention by the legal community. (11) It is by clearly understanding the history and historic role of the OLC can the significant attention given to the Bush OLC be understood.

II. THE ORIGIN AND PURPOSE OF THE OFFICE OF THE ATTORNEY GENERAL

The position of Attorney General was not always among the pantheon of cabinet secretaries within the executive branch. (12) Former Attorney General William Barr, in a presentation at Cardozo Law School, observed that the position was originally a part-time position with no staff, office space, or supplies, with an annual salary of half of the other cabinet secretaries. (13) Since the Attorney General was authorized only to handle legal matters and cases in which the U. …