The NYT has a very interesting story on the targeting of Anwar al-Awlaki for a drone strike. Of particular interest is the story’s account of the efforts by academics-turned-government-lawyers to ensure that targeting al-Awlaki would be legal. Here’s a taste: David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of […]
Archive | OLC Opinions
President Obama’s Deferred Action on Immigration (and OLC)
Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.” (For DHS’s page on the program, see here.) […]
Ninth Circuit holds for John Yoo in lawsuit by Jose Padilla
A unanimous panel of the Ninth Circuit (Fisher, Smith, Pallmeyer (dj, NDIll, by designation)) held today that former OLC Deputy Assistant Attorney General John Yoo is entitled to qualified immunity in the lawsuit brought by former detainee Jose Padilla. If you’re just tuning in, the first two paragraphs set forth the nature of the lawsuit […]
Ackerman: Release the Recess Appointment Opinion
By Jonathan H. Adler on January 10, 2012 11:29 pm in Executive Branch, OLC Opinions, Recess Appointments
Yale’s Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess. As Ackerman notes, the Justice Department’s Office of Legal Counsel “traditionally served as the executive branch’s authoritative […]
Dawn Johnsen on Koh v. Yoo
Former OLC nominee Dawn Johnsen objects to Eric Posner’s suggestion that Harold Koh and John Yoo are “peas in a pod” for their aggressive, politically motivated legal interpretations (albeit peas of differing ideological stripes). In her view, both Yoo and Koh are wrong, but in meaningfully different ways. Yoo’s infamous memos on torture and other […]
2,524 days
That is about how long it has been since DOJ’s Office of Legal Counsel had a confirmed head. Jack Goldsmith resigned effective July 30, 2004. But the Senate has just confirmed Virginia Seitz by voice vote to be Assistant Attorney General for the Office, after a relatively “speedy” confirmation process lasting just under six months.* It may […]
Greenwald on Bush, Obama, and OLC
Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama. Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, […]
Balkin on Bush, Obama and OLC
Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization. He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the […]
“Extraordinarily Rare”
As Charlie Savage notes twice in the article Jonathan discusses below, the President and the Attorney General have the authority, in the hierarchical Executive Branch, to overrule the advice of OLC. But as the article also notes, it is “extraordinarily rare” for that to happen. When Senator Whitehouse asked me after a hearing in 2008 […]
President Overruled OLC on Libya
The NYT‘s Charlie Savage has confirmed that the President overruled the Department of Justice Office of Legal Counsel’s opinion of what constitutes “hostilities” under the War Powers Resolution, preferring instead the conclusion reached by the White House Counsel’s office and the State Department’s Harold Koh. In another story earlier this week on the Administration’s explanation to […]
Fin-uh-lee! An OLC nominee
Yesterday, the White House finally sent to the Senate the long-rumored nomination of Virginia Seitz to be Assistant Attorney General. I’ve discussed the (then-rumored) nomination here. In keeping with tradition, the nomination does not specify that Seitz would be AAG for the Office of Legal Counsel. If I remember correctly, that is because the legislation […]
OLC’s “Best Practices” In Giving Legal Advice
In May 2005, Steven G. Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, issued a memorandum entitled “Best Practices for OLC Opinions.” At the time, the Office was the subject of controversy because of leaked national security opinions that were prepared during the months following 9/11. Bradbury was (and for the […]
Finally . . . Another Nominee For OLC Chief?
The Wall Street Journal reports that in January, President Obama will nominate DC’s Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel. OLC hasn’t had a confirmed head since July 2004. NPR reported back on August 4 that Seitz, who is a respected appellate litigator at Sidley Austin, was the front-runner […]
DAAG Marty Lederman to leave OLC
Another member of the Obama Administration’s “beachhead team” is leaving OLC. About one month after Acting Assistant Attorney General David Barron announced that he was returning to Harvard Law School, Deputy Assistant AG Marty Lederman has announced he’s leaving the Office in August and will return to Georgetown University Law Center this fall. I understand […]
David Barron Leaving OLC
The New York Times reports that David Barron, acting head of the Justice Department’s Office of Legal Counsel, will step down next month to return to Harvard Law School. Deputy Assistant Attorney General Jonathan Cedarbaum will replace him. Of note, OLC has not had a Senate-confirmed head in six years. More at Main Justice.