A Failure of Legal Scholarship
The smart legal types in the blogosphere have weighed in on whether or not OPR’s investigation of two OLC opinions (the rationale for warrantless wiretapping and the rationale for torture) can accomplish anything. Marty Lederman writes,
I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.
[snip]
Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC’s advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.
In an op-ed in the National Law Journal, Sheldon Whitehouse (who pushed OPR to conduct the torture-related of these two investigations) elucidates what he thinks the OPR is likely to to find.
This substantial body of precedent [finding waterboarding illegal] has been documented by Evan Wallach in the Columbia Journal of Trans- national Law. Most notably, Wallach details incidents of waterboarding prosecuted by DOJ itself: the 1983 federal prosecution of a Texas county sheriff who waterboarded prisoners. The indictment asserted that the defendants conspired to "subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions." The sheriff and his deputies were all convicted. The 5th U.S. Court of Appeals affirmed. U.S. v. Lee, 744 F.2d 1124 (1983). At sentencing, U.S. District Judge James DeAnda admonished the former sheriff, "The operation down there would embarrass the dictator of a country."
How is it that the OLC, the elite legal conscience of DOJ, completely missed a U.S. Court of Appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department? Is this a failure of legal analysis, or something much, much worse?