Rule of Law, or Lawless Rule?

The Department of Justice is expected to release today several Bush-era memos with detailed descriptions of interrogation methods and legal rationales for their use. The memos are likely to be heavily redacted as the result of fierce CIA opposition to revealing the specific techniques to which detainees were subjected. A senior official in the Obama administration who saw the documents used the word “ugly” to describe their contents.

The CIA claims that releasing the memos unredacted would compromise national security. As Glenn Greenwald explains, that is nonsense (emphasis is Glenn’s):

I want to underscore one vital point about this controversy that is continuously overlooked and will be undoubtedly distorted today in the event of non-disclosure:  these documents are not intelligence documents.  They are legal documents and, more specifically, they constitute what can only be described as secret law under which the U.S. was governed during the Bush era.  Thus, the question posed by the release of these OLC memos is not whether Obama will release to the public classified intelligence programs.  The question is whether he will release to the public the legal doctrines under which the U.S. Government conducted itself regarding interrogation techniques he claims are no longer being used.

These memos were not prepared by the CIA or the Pentagon.  To the contrary:  they were written by DOJ lawyers — specifically, OLC chief Steven Bradbury and then-OLC Assistant Attorney General Jay Bybee.  They are not “intelligence reports” from the field.  They are, by definition — by their very nature — nothing more than decrees about what is and is not legal:  i.e., they are pure legal documents that state what the Executive Branch’s view of the law is with regard to interrogation tactics.  OLC is not an intelligence agency.  It is a legal agency.  Here (.pdf) is how it defines its own function:

The Office of Legal Counsel exercises the Attorney General’s authority under the Judiciary Act of 1789 to advise the President and executive agencies on questions of law. . . . Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch.

This renders blatantly frivolous the Bush-mimicking excuse that will almost certainly be offered in the event of substantial redactions today (and which anonymous Obama officials previewed yesterday in the WSJ):  namely, that non-disclosure is compelled by the Safety of the American People.  Aside from the fact that the “enhanced interrogation techniques” which these memos authorized are supposedly barred from use by President Obama’s own Executive Order — thus rendering any national security claims for concealment of “operational details” absurd on their face — how can it be the case that legal opinions about what is and is not legal in the view of the Government should be kept secret?  To justify the non-disclosure of these memos is to affirm the right of the U.S. Government to operate under secret laws — about the most anti-democratic state of affairs imaginable.

Exactly how the government should operate, according to Michael Hayden, in an interview with Andrea Mitchell that d-day saw:

…Andrea Mitchell had former CIA Director and NSA head Michael Hayden (who, shockingly, is now with something called “The Chertoff Group”) on, and he basically said that the American people don’t have the right to know what their government does in their name, and thus the memos shouldn’t be released at all. Then, on the NSA “overcollection” case, he maintained that “the NSA follows the law” and just like journalists, they can’t be right 100% of the time and they do the best they can. Then he claimed that the NSA self-reported the problem, when the NYT article said it came up in a Justice Department review.

Just so you know what a defense of evil sounds like. The interview was amazing.

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