November 7th, 2008
As we turn away from the dark side, one of Obama’s crucial appointments will be as head of the Justice Department Office of Legal Counsel. As we discovered to our horror, the OLC gets to decide what is legal for the executive branch. OLC decisions have great force.
Anonymous Liberal is suggesting Marty Lederman for head of OLC. That seems like a truly inspired idea:
Lederman for Head of OLC
To be perfectly honest, I don’t care all that much who Barack Obama chooses to appoint to the multitude of positions that now have to be filled. I’m confident that he’ll choose competent people who generally share his views, at least with respect to the area of government under their charge.
As we saw with the Bush administration, the OLC is a tremendously powerful office. It functions as the chief internal arbiter of legality within the executive branch. After 9/11, John Yoo used his perch at the OLC to authorize a number of illegal activities–from torture to warrantless surveillance–that are not only deeply troubling but have badly damaged America’s image in the world. Yoo was allowed to do most of this because the head of the OLC at the time, Jay Bybee, was not familiar with the relevant executive power issues and therefore allowed Yoo to run amok.
When Jack Goldsmith took over the OLC in 2003, he discovered–to his horror–that a multitude of Bush administration programs rested on entirely indefensible legal opinions drafted by the OLC during his predecessor’s tenure. He was forced to walk most of them back, a move that caused a major internal dispute within the Bush administration and nearly resulted in the total implosion of the administration just prior to the 2004 election.
Whoever President Obama selects to head the OLC will have a critically important job. Virtually every opinion the OLC has issued during the post 9/11 era–even those written after Yoo’s departure–will need to be reviewed and, in all likelihood, rewritten. Moreover, many of the terrorism-related laws that have been passed in the last few years–relating to surveillance, detention, torture, etc.–are filled with ambiguities and language that will require careful interpretation. Many new legal opinions, opinions that will be of enormous consequence, will need to be drafted.
Professor Lederman is exactly the sort of person I would want in charge of this important task. First, he’s deeply familiar with all of the relevant executive power issues, having written about them extensively over the last few years. He is also intimately familiar with the workings of the OLC, having worked there from 1994-2002. And most importantly, I think Lederman has a good sense of what the OLC’s role should be (i.e., not merely rubber-stamping whatever the president wants to do).
I have no idea if Marty is interested in the job. Perhaps he’s not. But if he is, he’d be a very reassuring choice.