Overview:
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Located within the Department of Justice, the Office of Legal Counsel functions as one of the most powerful legal bodies in the federal government. Although few have heard of it, the office is responsible for putting forth legal opinions that shape the public policies of the executive branch. Its most important duty is helping to define the legality of decisions made by the White House. While the Constitution gives the US Attorney General responsibility for providing legal advice to the President, the Office of Legal Counsel has become the de facto legal advisor to the Oval Office. During the administration of George W. Bush, the office has become the center of numerous controversies surrounding the President’s bold—and probably illegal—efforts to extract information from suspected terrorists. One of the most heated criticisms of the Bush administration has been its decision to allow military and intelligence officers to use torture while interrogating detainees—a decision based on the legal rationale provided by the Office of Legal Counsel. The low-profile office also has ruled that the federal government can legally fund organizations that discriminate in their hiring based on religious preferences.
History:
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The Office of Legal Counsel was created in 1934 by Congress as part of an executive branch reorganization that involved the Department of Justice. The office was headed by an assistant solicitor general until 1951 when Attorney General J. Howard McGrath elevated the office’s top post to assistant attorney general in charge. The office was also renamed the Executive Adjudications Division. This lasted for two years until the name was changed to Office of Legal Counsel by Attorney General Herbert Brownell.
Some of the office’s top leaders have gone on to hold powerful positions in the federal government, including Theodore Olson, who argued George W. Bush’s case before the US Supreme Court in 2000 which decided the outcome of the presidential election, and later served as US Solicitor General under Bush, and William Rehnquist (1969-1971) and Antonin Scalia (1974-1977), who went on to serve on the US Supreme Court.
While serving as head of the Office of Legal Counsel in the Nixon administration, Rehnquist drafted a white paper, “The President and the War Power: South Vietnam and the Cambodian Sanctuaries,” which was used by the White House to legally justify the United States’ invasion of Cambodia, a neutral country that became swept up in the Vietnam War. Rehnquist’s paper proved vital not only for the Nixon presidency but for another one 30 years later.
On August 1,2002, the head of the Office Legal Counsel, Jay Bybee submitted a controversial memo that had been crafted by John C. Yoo that justified the Bush administration’s use of torture against terrorists. Bybee cited Rehnquist’s whitepaper as his primary legal justification for okaying the use of cruel and inhuman punishment by American military and intelligence officers to gather information from detainees.
In addition to the torture memo, the office has produced other controversial arguments, including the right to give federal tax dollars to religious organizations and allowing unwarranted searches and seizures immediately following the 9/11 terrorist attacks. (see Controversies)
Office of Legal Counsel PBS (Frontline)
Palace Revolt (by Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas, Newsweek)
Selected Opinions of the Office of Legal Counsel (Federation of American Scientists)
Rehnquist, Cambodia & Abu Ghraib (by Bruce Shapiro, The Nation)
What it Does:
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Part of the US Department of Justice, the Office of Legal Counsel is one of the most powerful and secretive operations in the federal government. Few outside Washington, DC, know of this office which provides legal opinions that shape the power of the presidency and other US government functions.
According to the US Constitution, the United States Attorney General serves as the legal advisor to the President. However, due to the busy nature of the Attorney General, the Office of Legal Counsel often acts as the real advisor to the President by issuing legal opinions on key matters. These opinions, both written and oral, have come to serve as policy directives that can affect the scope of important issues, such as the Bush administration’s Global War on Terrorism. Some observers have called the office a “mini supreme court” because its opinions are considered the “final word” on legal justifications for policy decisions.
The Office of Legal Counsel’s opinions are issued in response to requests from the Attorney General, the White House and various agencies of the executive branch. The subjects of these opinions involve controversial or complex issues, and in some cases, the opinions are sought to settle legal disagreements between two or more agencies.
The office will also review pending legislation to determine whether it is constitutional. All executive orders and proclamations issued by the President are reviewed by the office before being issued.
In addition to providing legal advice to the White House, the Office of Legal Counsel acts as outside counsel for other executive branch agencies and as general counsel for the Department of Justice. It reviews all proposed orders by the Attorney General and all regulations requiring the Attorney General’s approval.
Controversies:
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Office Justifies Federal Payments to Religious Groups
The Office of Legal Counsel quietly issued a memo on June 29, 2007, stating that the Bush administration could bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith. The memo was part of the administration’s effort to lower barriers between church and state through its religion-based initiative offices. It went so far as to argue that even federal programs subject to antidiscrimination laws can give money to groups that discriminate based on religious preference.
The document justified a $1.5 million grant to World Vision, a group that hired only Christians, for salaries of staff members running a program that helps “at-risk youth” avoid gangs. The grant was from a Justice Department program created by a statute that forbade discriminatory hiring for the positions it is financing.
Several law professors who specialize in religious issues called the argument legally dubious. Ira C. Lupu, a co-director of the at George Washington University Law School, said the opinion’s reasoning was “a very big stretch.”
Bush Aides Say Religious Hiring Doesn’t Bar Aid (by Charlie Savage, New York Times)
Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act (Office of Legal Counsel) (PDF)
Office of Legal Counsel Justifies Torture of Terror Suspects
Six days before the March 20, 2003, invasion of Iraq, the Office of Legal Counsel issued a memo to the Department of Defense that said federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes. The 81-page memo argued that “poking, slapping or shoving detainees would not give rise to criminal liability.” The document also defended the use of mind-altering drugs on detainees.
Nine months after it was issued, Justice Department officials told the Pentagon to stop relying on it. But the memo’s reasoning provided the legal foundation for the military’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and US forces prepared to invade Iraq.
The memo was authored by John C. Yoo, then a deputy in the Office of Legal Counsel. Yoo’s work was viewed as an expansive argument for nearly unfettered presidential power in a time of war, declared or otherwise. It contended that numerous laws and treaties forbidding torture or cruel treatment should not apply to US interrogations in foreign lands because of the president’s inherent wartime powers.
Memo: Laws Didn't Apply to Interrogators (by Dan Eggen and Josh White, Washington Post)
Office’s Top Official Bucks White House
When he was selected to lead the Office of Legal Counsel in 2003, Jack Goldsmith was regarded as one of the brightest stars in conservative legal circles. A 40-year-old law professor at the University of Chicago, Goldsmith had established himself, with his friend and fellow law professor John C. Yoo, as a leading proponent of the view that international standards of human rights should not apply in cases before US courts. But much to the surprise of officials in the Bush administration, Goldsmith soon began pushing back on efforts to allow unfettered use of torture against terror suspects after he took over the office. At one point, he was summoned by Vice President Dick Cheney’s chief of staff, David Addington, to explain himself.
In his book, The Terror Presidency, written after leaving the administration, Goldsmith described Addington as the “biggest presence in the room” and “someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his case to Addington regarding why the Geneva Conventions did apply to the treatment of detainees, Addington declared, “The president has already decided that terrorists do not receive Geneva Convention protections,” according to Goldsmith. “You cannot question his decision,” Addington added.
Conscience of a Conservative (by Jeffrey Rosen, New York Times)
Office Says Fourth Amendment Didn’t Apply to Military After 9/11
For sixteen months after the Sept. 11 terrorist attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on US soil did not apply to its efforts to protect against terrorism. That view was expressed in an Office of Legal Counsel memo dated October 23, 2001, and authored by John C. Yoo. The memo (still classified) was written in response to a request by Alberto Gonzales, then White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.
“Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” wrote Yoo in a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”
The administration said it now disavows that view. It also said that the finding did not relate to other legal rationale used to justify the warrantless wiretapping of electronic communications of some Americans citizens and residents by the National Security Agency.
Memo linked to warrantless surveillance (by Pamela Hess and Lara Jakes Jordan, Associated Press)
Former Directors:
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Angus D. MacLean (1933-1935)
Golden W. Bell (1935-1939)
Charles Fahy (1940-1941)
Oscar S. Cox (1942-1943)
Hugh B. Cox (1943-1945)
Harold W. Judson (1945-1946)
George T. Washington (1946-1949)
Abraham J. Harris (1950-1951)
Joseph C. Duggan (1951-1952)
J. Lee Rankin (1953-1956)
W. Wilson White (1957-1957), after a short tenure, selected to be first head of the Justice Department's Civil Rights Division
Malcolm R. Wilkey (1958-1959)
Robert Kramer (1959-1961)
Nicholas Katzenbach (1961-1962)
Norbert A. Schlei (1962-1966)
Frank H. Wozencraft (1966-1969)
William H. Rehnquist (1960-1971), later confirmed as Associate, and subsequently Chief Justice of the U.S. Supreme Court
Ralph E. Erickson (1971-1972)
Roger C. Cramton (1972-1973)
Antonin Scalia (1974-1977), later confirmed as Associate Justice of the U.S. Supreme Court
John M. Harmon (1977-1981)
Theodore B. Olson (1981-1984), later became U.S. Solicitor General
Charles J. Cooper (1985-1988)
Douglas Kmiec (1988-1989)
William P. Barr (1989-1990)
Timothy Flanigan (1990-1992)
Walter Dellinger (1993-1994)
Dawn Johnsen (1996-1998)
Randolph D. Moss (2000-2001)
Jay S. Bybee (2001-2003)
Jack Goldsmith (2003-2004)
- Table of Contents
- Overview
- History
- What it Does
- Where Does the Money Go
- Controversies
- Suggested Reforms
- Comments
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Office of Legal Counsel
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