Executive Branch Legal Analysis for National Security Policy: Who Controls Access to Legal Memos?

Article excerpt

The steady emergence in the post-9/11 environment of controversial national security policies has brought to the surface the issue of legal interpretation by the executive branch of the constitutional or statutory authority justifying government actions. This interpretive activity is performed by general counsels in agencies and departments, but, most often, the primary responsibility falls to the Office of Legal Counsel (or OLC) in the Department of Justice (or DOJ). It is easy to recall the searing national debate that occurred after the public gained access to John Yoo's "torture memo" and other similar OLC opinions from 2001 to 2008 that interpreted executive authority in unprecedented ways, amounting to claims of exclusive and absolute presidential power in the national security realm (U.S. Department of Justice 2002). These episodes made clear the immense significance of the classic question of "who interprets the law," where interpretation drives and controls executive branch policy making.

At the same time, an even greater issue was brewing, as the public came to realize that these legal opinions had been prepared in secret: thus, actions taken by the U.S. government in its efforts to combat counterterrorism had been given a legal "green light" through a decision-making process occurring outside of public view and without accountability. Congressional statutes and international treaties had been interpreted by the executive branch in ways that either stretched their meaning well beyond their intent or bypassed them altogether. But, unless and until the public was able to read the legal opinions firsthand, it lacked the ability to judge the quality of the legal analysis that guided the executive branch's actions. After those legal opinions finally came to light, DOJ officials, in the waning days of the Bush administration and the first month of the Obama administration, officially discredited and withdrew them because it judged them legally deficient and of poor quality (U.S. Department of Justice 2013d; see, especially, Bradbury 2009).

Fast forward to 2011 and to the increasing demands to make public the legal analysis that justified the government's targeted killing of an American citizen in Yemen, Anwar al-Aulaki, or its larger program of such killings in Pakistan, Yemen, and Somalia through drone strikes (Savage 2011). Then, in spring and summer 2013, pressure began to build for the legal opinions relied upon by the administration to justify domestic warrantless surveillance programs (Savage and Shane 2013). With each new revelation of ever-greater government surveillance of electronic communication undertaken in apparent contradiction to existing law, the drumbeat for the government to provide legal justification for its actions grows increasingly more intense. Cases are already starting to build in the federal courts that will require the executive branch to lay bare the legal arguments that underlie its policy positions in these matters. Understanding those legal arguments can provide a useful "window" into executive branch policy making: just as the eventual disclosure of the Bush administration OLC memos was necessary to reveal shoddy legal analysis that supported highly questionable government counter-terrorism practices that ran counter to law, there is reason for the informed public to want to learn the legal thinking that underlies the controversial practices of the current administration. Targeted killings, especially of American citizens, and domestic warrantless electronic surveillance would likely rank at the top of the list of such practices that the public would want to probe.

Two cases making their way currently through the federal courts provide a first glimpse into some of the postures the executive branch is using to shield from public view the official legal opinions that justify its policies (NYT 2013a; Electronic Frontier Foundation v. Department of Justice 2013a). …

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