DOJ Still Deliberating about 2006 White Paper

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As I noted in my last post, the Obama Administration is following Bush Administration precedent in shielding OLC memos from Congressional oversight.

The Kyl and Coburn requests for OLC memos on any rights Gitmo detainees would get if brought into the US were not the only questions about OLC memos posed to Eric Holder after his November 2009 appearance before the Senate Judiciary. Russ Feingold raised an issue he always raises during oversight hearings: the still-operative OLC memos authorizing warrantless wiretapping.

Office of Legal Counsel White Memos:

20. In your October 29, 2009, responses to Questions for the Record from the June 17, 2009, Department of Justice Oversight hearing, you stated that there was an ongoing review of whether to withdraw the January 2006 White Paper and other classified Office of Legal Counsel (OLC) memos providing legal justification for the NSA’s warrantless wiretapping program. What is the current status of that review? When will it be complete? Has anyone at the Department made an affirmative decision to leave those opinions in effect?

Response: The Department is still conducting its review, and will work with you and your staff to provide a better sense of the timing of the completion of the review. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.

This is the White Paper based largely on a May 6, 2004 Jack Goldsmith opinion written after the hospital confrontation and designed to replace Yoo’s expansive claims to inherent authority with an argument that the AUMF authorized the warrantless wiretap program. And according to Holder, DOJ is still dithering around with the question of whether they need to withdraw the memo.

Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

And I find that curious because, while I have no idea what Acting OLC  head David Barron thinks of the January 2006 White Paper, we do know what another key OLC attorney thinks about it. While still at Balkinization, Marty Lederman repeatedly explained why the AUMF could not be claimed to have authorized the warrantless wiretap program. In February 2006, Lederman was one of a number of lawyers who wrote Congress explaining that the AUMF argument made no sense. In March 2006, Lederman wrote a long post analyzing what David Kris–now AAG for National Security–said in arguing that the AUMF couldn’t justify the warrantless wiretap program.

Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

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12 replies
    • emptywheel says:

      Yeah, I’m looking around for bmaz to see if he wants to write a post on it. Cause I’m sure he needs reason to be angry on this fine Saturday.

    • cheneywatchorg says:

      I looked over the cast of appointees, and though I’m accustomed to reading lots of bios, I don’t see a John Bolton among them. When I read elsewhere that this is just like Bush the II, I have to decide how much they are alike at least. My only strategic guess about Johnsen is that it would be preferred to have her legitimized by the Senate, even after a long fight, than to have her snuck in via ResApp.
      2 cents from the peanuts.
      CW

  2. JasonLeopold says:

    Haha! It is a fine Saturday. And bmaz will only make it finer with one of his classic posts. It’s amazing though b/c she has been waiting the longest.

  3. Peterr says:

    Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

    And that right there is probably the reason the review is not complete. Somewhere there is a memo on Holder’s desk or an email in his computer, saying “As the Acting OLC Director, I suggest this review await the arrival of the permanent director. A review of this magnitude deserves the attention of the senate-confirmed director of this office, and it would best be conducted by that person, rather than started by me and handed off in mid-stream to someone else.”

    Of course, that memo or email was probably dated about a day or two after the initial request to conduct this review was made.

    OTOH, it could have been the other way around, and the memo went to the acting OLC head saying “We’re going to review this, but don’t start anything yourself that can’t be easily handed over to the permanent OLC Director once the confirmation hearings are over.”

    In either case, Holder can’t admit that this is still hanging out there because of the Senate’s obstructionism in approving Dawn Johnsen without angering them — and he’s probably under strict orders from Rahm Emanuel to do avoid anything that would have that result.

    • fatster says:

      We do too believe you. I just don’t get why she keeps hanging on. Deep commitment on her part? If that’s the case, and she does finally get the appointment, that will be a day of celebration.

      BTW, today they announced the nomination of Dr. Berwick for Director of Medicare & Medicaid, a post without a permanent director since 2006.

  5. PJEvans says:

    Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

    I have this feeling that if the DoJ withdraws this memo, someone high in government is going to have their ass hanging out for all to see.

  6. Hmmm says:

    I would also consider the Afgnanistan drone assassinations and the possibility than any decent lawyer would call bullshit on all that. Which also brings up the question of how they can possibly retroactively whitewash that afterwards. Tangled web, that.

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