On his second day in office, President Obama directed all of his administration's employees to work toward "an unprecedented level of openness," explaining that transparency would "strengthen our democracy and promote efficiency and effectiveness in government."
Now the president can begin to make good on his promise of transparency by releasing the dozens of still-secret legal memos written by the Bush administration's Office of Legal Counsel.
The Office of Legal Counsel, which is part of the Justice Department, provides authoritative legal opinions to the president and executive branch agencies. It tells the president what the law allows and, more important, what the law prohibits.
Dawn Johnsen, whom Obama has nominated to lead the once-obscure office and whose confirmation hearing was held Wednesday, wrote in a 2007 law review article that the office must be "prepared to say no to the president." But under President Bush, the office played a very different role: Its senior lawyers served not as sources of bona fide legal guidance but as knowing facilitators of the president's lawless conduct.
Office of Legal Counsel lawyers told Bush, for instance, that the 4th Amendment's protection against unreasonable searches and seizures did not apply to military operations inside the United States. They also created a legal argument to justify the National Security Agency's warrantless wiretapping program. And they produced memos that permitted the CIA to subject prisoners to waterboarding and other barbaric interrogation methods that the United States had in the past prosecuted as war crimes.
Lawyers for the office -- including John Yoo, Steven Bradbury and Jay Bybee -- churned out dozens of memos on torture, rendition, detention without charge and wiretapping without warrants. Many of their positions were founded on a conception of unbounded executive power previously articulated most succinctly by President Nixon: "When the president does it, that means it's not illegal." The memos simply ignored the Supreme Court decisions that rejected this theory.
Worse yet, some of the memos were plainly intended to insulate Bush administration officials from criminal liability. Jack Goldsmith, who as head of the Office of Legal Counsel felt compelled to withdraw some of the most extreme memos written by Yoo and others, has charged that the torture memos in particular, "in their redundant and one-sided effort to eliminate any hurdles posed by the torture law ... could be interpreted as if they were designed to confer immunity for bad acts."
