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

By Kassop, Nancy | Presidential Studies Quarterly, June 2014 | Go to article overview

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


Kassop, Nancy, Presidential Studies Quarterly


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). …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.