SINCE ITS creation in the early 20th century, the Justice Department's Office of Legal Counsel has been considered the legal conscience of the executive branch, rendering judgments to presidents and executive agencies about what the law allows. The OLC responds to executive branch requests for clarifications on everything from how to determine annual leave for federal employees to whether treaty provisions are constitutional and how torture should be defined. Its opinions are binding on the executive and essentially carry the weight of law. Past OLC opinions continue to have force when a new administration begins, just as Supreme Court decisions enjoy the force of law long after the justices who made them have left the bench.My first question is do the opinions really have the force of law? If they do, then they should be subject to the notice and comment period that is required for the issuance of regulations and guidelines. If not, the the OLC opinions are simply that, opinions by lawyers.
If the opinions are just that, then what the OLC is doing is representing their client--the federal government in giving them opinions about the law. These lawyers don't make policy, they merely respond to requests for legal information.
What the Post doesn't like is the OLC's opinions on torture or other Bush Administration efforts. So in order to attack on another front, the Post attacks the lawyers of the OLC for---doing their job.
Most important, the OLC should publicly release more of its opinions, as was routinely done during Janet Reno's tenure as attorney general during the 1990s. Too many Bush OLC memos remain secret, with only a handful of administration officials being privy to their conclusions. Congress has the right to know how laws are being interpreted -- or whether they're even being enforced.But herein lies the dichotomy. If the opinions are public policy documents that have the force of law, they should be subject to notice and comment. If they are opinions of law by lawyers for the govnerment, why should they be made public. Just because the lawyer works for the federal government does not inhibit the attorney client privilege. The fact that Janet Reno's Justice Department routinely issued OLC opinions to the public leaves out the question of what opinions were made public. The Bush White House has no doubt issued some, but others related to national security perhaps not, just as I am sure that Reno didn't issue OLC memos on national security either.
The Post is swinging the paintbrush of righteous indignation about pretty widely, but what if a Democrat were in the White House and the GOP was asking to look into OLC, would the Post be making the same argument?