After previewing it first, I attended last Wednesday’s Hearing by the Constitution Subcommittee of the Senate Judiciary Committee about “Secret Law and the Threat to Democratic and Accountable Government.”
For fuller coverage, see FireDogLake, the Guardian, ACS Blog, or the statements and testimony from the hearing (set off on the upper right).
While my coverage will be far from complete, I find the process of taking and then preparing my notes from committee hearings to be a great way to digest what was presented, and to start to work through some of the issues that relate to open government and accountability, which lie at the heart of this hearing. (more)
The hearing started right into defining this distinction, with John Elwood, the Deputy Assistant Attorney General, making two sharp distinctions: First, he contended that the OLC memos were legal advice, not binding law, and, second, that Congress didn’t need to see the actual OLC memos in order to understand the policy under which the executive branch is operating.
Much of the hearing addressed this distinction. Is the term “secret law” appropriate? Insofar as OLC memos are binding on those they proscribe, and insofar as some regulations such as TSA regulations literally affect a citizen’s conduct, then there is “secret law”.
Senator Whitehouse and Mr. Elwood went back and forth a few times on the degree to which OLC memos are a certain kind of admissable document in a court, trying to distinguish what kinds of legal evidence or legal usage the OLC memo might have the possibility of becoming. Senator Whitehouse accused the Bush Administration of using the OLC memos as a way of making cover for the rest of the agencies, which the operate under (technically illegal) legal advice.
If you’re getting legal advice, you want it to be be objective. This is why the recent IG reforms that passed the Senate and House incude a provision to provide IGs with separate legal counsel. How objectively can one do oversight when your legal advice is coming from the office you’re investigating?
The issue here is between the Congress, which is like the IG, needing to do effective oversight on the Department of Justice, where the Office of Legal Counsel writes their memos. If Congress can’t see the memos, or sometimes gets to see them, but only alone, without staff, and can’t take their notes with them, then how is that oversight? If they get to see individual pages, or even individual sentences, but not the rest of the documents, how can they perform their legislative duties?
There was a pleasant part of the hearing, where Senator Brownback and Senator Feingold realized they agreed on a limited measure that would require reporting of a certain kind from the executive branch when they interpret the law differently than it looks, which, as the rules now stand (apparently), is required only when the executive decides to not carry out the law. Both reporting requirements have the same effect; when the President avoids something viewed as unconstitutional, whether through interpretation or through denying any execution at all, Congress should have the right to be notified, since this is a clear violation of the intent of the legislation.
Senator Whitehouse’s testimony brought up some troublesome issues with executive power, especially dealing with the relationship between the President and the Department of Justice, and between Executive Orders and current Presidential conduct. The disturbing section follows, go here for an on screen version;
for a President to issue a new executive order whenever he wishes to depart from the terms
of a previous executive order. Rather than violate an executive order, the President has
instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine
whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.
While I’m not a legal scholar, the principles discovered here by Senator Whitehouse show an executive that is claiming expansive power, and, in turn, making the task of citizen oversight nearly impossible, in some circumstances. While the struggle and negotiations that go on around disclosure boundaries will probably not stop, they’re likely to shift a little when people realize that oversight and disclosure documents can offer real substance.
It’s easy to shirk a responsibility to share when no one cares. If people are empowered in their role as overseers, as watchdogs, then perhaps memos like these don’t get written.