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Office of Legal Counsel: Difference between revisions
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=== George W. Bush administration === | === George W. Bush administration === | ||
{{main|Torture Memos|Enhanced interrogation techniques}} | {{main|Torture Memos|Enhanced interrogation techniques}} | ||
During President George W. Bush's first term in office, OLC deputy assistant attorney general [[John Yoo]] drafted, and assistant attorney general [[Jay Bybee|Jay S. Bybee]] signed, a set of legal memoranda that became known as the "torture memos." These memos advised the CIA and the Department of Defense that the president may lawfully authorize the torture of detainees (euphemistically referred to as "enhanced interrogation techniques"), including beating, binding in contorted [[stress position]]s, [[hooding]], subjection to deafening noise, sleep disruption,<ref>{{cite news|last=Shane|first=Scott|date=June 3, 2007|title=Soviet-Style 'Torture' Becomes 'Interrogation'|newspaper=The New York Times|url=https://www.nytimes.com/2007/06/03/weekinreview/03shane.html}}</ref> [[sleep deprivation]] to the point of [[hallucination]], deprivation of food, drink, and withholding medical care for wounds, as well as [[waterboarding]], [[walling]], sexual humiliation, subjection to extreme heat or extreme cold, and confinement in small, coffin-like boxes.<ref>{{cite book|last=Gross|first=Michael L.|url=https://books.google.com/books?id=BYVlQkSBxn8C&pg=PA128|title=Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict|date=2010|publisher=[[Cambridge University Press]]|isbn=978-0521685108|page=128|quote=enhanced interrogation techniques [...] include hooding or blindfolding, exposure to loud music and temperature extremes, slapping, starvation, wall standing and other stress positions and, in some cases, waterboarding. [...] In the United States, enhanced interrogation was reserved for terror suspects [...] These methods include shaking, slapping, beating, exposure to cold, stress positions and, in the United States, waterboarding.|author-link=Michael L. Gross (ethicist)|access-date=July 30, 2018}}</ref><ref>{{cite book|last1=Friedlander|first1=Robert A.|url=https://books.google.com/books?id=gthMAgAAQBAJ&pg=PA230|title=Terror-Based Interrogation|last2=Boon|first2=Kristen E.|last3=Levie|first3=Howard S.|date=2010|work=Terrorism: Commentary on Security Documents|publisher=[[Oxford University Press]]|isbn=978-0195398144|volume=109|pages=230–234}}</ref><ref>{{cite news|first=Oliver|last=Laughland|date=December 9, 2014|title=How The CIA Tortured its Detainees|work= | During President George W. Bush's first term in office, OLC deputy assistant attorney general [[John Yoo]] drafted, and assistant attorney general [[Jay Bybee|Jay S. Bybee]] signed, a set of legal memoranda that became known as the "torture memos." These memos advised the CIA and the Department of Defense that the president may lawfully authorize the torture of detainees (euphemistically referred to as "enhanced interrogation techniques"), including beating, binding in contorted [[stress position]]s, [[hooding]], subjection to deafening noise, sleep disruption,<ref>{{cite news|last=Shane|first=Scott|date=June 3, 2007|title=Soviet-Style 'Torture' Becomes 'Interrogation'|newspaper=The New York Times|url=https://www.nytimes.com/2007/06/03/weekinreview/03shane.html}}</ref> [[sleep deprivation]] to the point of [[hallucination]], deprivation of food, drink, and withholding medical care for wounds, as well as [[waterboarding]], [[walling]], sexual humiliation, subjection to extreme heat or extreme cold, and confinement in small, coffin-like boxes.<ref>{{cite book|last=Gross|first=Michael L.|url=https://books.google.com/books?id=BYVlQkSBxn8C&pg=PA128|title=Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict|date=2010|publisher=[[Cambridge University Press]]|isbn=978-0521685108|page=128|quote=enhanced interrogation techniques [...] include hooding or blindfolding, exposure to loud music and temperature extremes, slapping, starvation, wall standing and other stress positions and, in some cases, waterboarding. [...] In the United States, enhanced interrogation was reserved for terror suspects [...] These methods include shaking, slapping, beating, exposure to cold, stress positions and, in the United States, waterboarding.|author-link=Michael L. Gross (ethicist)|access-date=July 30, 2018}}</ref><ref>{{cite book|last1=Friedlander|first1=Robert A.|url=https://books.google.com/books?id=gthMAgAAQBAJ&pg=PA230|title=Terror-Based Interrogation|last2=Boon|first2=Kristen E.|last3=Levie|first3=Howard S.|date=2010|work=Terrorism: Commentary on Security Documents|publisher=[[Oxford University Press]]|isbn=978-0195398144|volume=109|pages=230–234}}</ref><ref>{{cite news|first=Oliver|last=Laughland|date=December 9, 2014|title=How The CIA Tortured its Detainees|work=The Guardian|url=https://www.theguardian.com/us-news/2014/dec/09/cia-torture-methods-waterboarding-sleep-deprivation|access-date=December 15, 2014}}</ref> The Justice Department's [[Office of Professional Responsibility]] (OPR) later concluded that Yoo committed "intentional professional misconduct" in advising the CIA that it could torture detainees<ref name="Isikoff">{{cite news|last=Isikoff|first=Michael|author-link=Michael Isikoff|date=February 19, 2010|title=Report: Bush Lawyer Said President Could Order Civilians to Be 'Massacred'|work=Newsweek|url=https://www.newsweek.com/report-bush-lawyer-said-president-could-order-civilians-be-massacred-217458|url-status=live|archive-url=https://web.archive.org/web/20140907100302/http://www.newsweek.com/report-bush-lawyer-said-president-could-order-civilians-be-massacred-217458|archive-date=September 7, 2014}}</ref><ref name="OPR">{{cite report|url=https://www.aclu.org/files/pdfs/natsec/opr20100219/20090729_OPR_Final_Report_with_20100719_declassifications.pdf|title=Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists|author=Department of Justice Office of Professional Responsibility|date=July 29, 2009|publisher=[[United States Department of Justice]]|author-link=Office of Professional Responsibility|access-date=July 1, 2020|via=aclu.org}}</ref>{{rp|254}} and that by signing Yoo's memorandum, Bybee had "acted in reckless disregard of his obligation to provide thorough, objective, and candid legal advice."<ref name="OPR" />{{rp|257}} | ||
In May 2005, during [[Presidency of George W. Bush|President George W. Bush's second term]], a set of similar torture memos were approved by [[Steven G. Bradbury]], who served as acting head of OLC from February 2005 through the remainder of President Bush's second term. Bradbury was first officially nominated on June 23, 2005, and then repeatedly re-nominated because of Senate inaction.<ref>[http://thomas.loc.gov/home/nomis.html Presidential Nominations database] {{Webarchive|url=https://web.archive.org/web/20160201150647/http://thomas.loc.gov/home/nomis.html|date=February 1, 2016}}, via [[THOMAS]] (accessed January 24, 2009).</ref> His position became a point of political friction between the Republican president and the Democratic-controlled [[110th United States Congress|110th Congress]], when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points.<ref>{{cite news|last=Ackerman|first=Spencer|date=October 19, 2007|title=Who Is Steve Bradbury?|work=[[Talking Points Memo]]|url=https://talkingpointsmemo.com/muckraker/img-src-http-talkingpointsmemo-com-images-steven-bradbury-headshot-muck-jpg-vspace-5-hspace-5-align-left-who-is-steve-bradbury}}</ref><ref>{{cite news|last=Kiel|first=Paul|date=February 6, 2008|title=White House Insists on Confirmation of Torture Memo Author|work=[[Talking Points Memo]]|url=https://talkingpointsmemo.com/muckraker/img-src-http-talkingpointsmemo-com-images-steven-bradbury-headshot-muck-jpg-vspace-5-hspace-5-align-left-white-house-insists-on-confirmation-of-torture-memo-author|access-date=April 18, 2019}}</ref><ref name="proforma">{{cite news|date=December 26, 2007|title=Webb opens, closes vacant Senate session|publisher=CNN|url=https://edition.cnn.com/2007/POLITICS/12/26/senate.pro.forma/index.html|access-date=October 26, 2019}}</ref> An opinion issued by the [[Government Accountability Office]] concluded that his status was not a violation of the [[Federal Vacancies Reform Act of 1998]].<ref name="gao">{{cite web|last=Kepplinger|first=Gary L.|date=2008-06-13|title=Federal Vacancies Reform Act of 1998-Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice|url=http://www.gao.gov/products/A82394#mt=e-report|access-date=2017-06-01|publisher=[[Government Accountability Office]]}}</ref> | In May 2005, during [[Presidency of George W. Bush|President George W. Bush's second term]], a set of similar torture memos were approved by [[Steven G. Bradbury]], who served as acting head of OLC from February 2005 through the remainder of President Bush's second term. Bradbury was first officially nominated on June 23, 2005, and then repeatedly re-nominated because of Senate inaction.<ref>[http://thomas.loc.gov/home/nomis.html Presidential Nominations database] {{Webarchive|url=https://web.archive.org/web/20160201150647/http://thomas.loc.gov/home/nomis.html|date=February 1, 2016}}, via [[THOMAS]] (accessed January 24, 2009).</ref> His position became a point of political friction between the Republican president and the Democratic-controlled [[110th United States Congress|110th Congress]], when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points.<ref>{{cite news|last=Ackerman|first=Spencer|date=October 19, 2007|title=Who Is Steve Bradbury?|work=[[Talking Points Memo]]|url=https://talkingpointsmemo.com/muckraker/img-src-http-talkingpointsmemo-com-images-steven-bradbury-headshot-muck-jpg-vspace-5-hspace-5-align-left-who-is-steve-bradbury}}</ref><ref>{{cite news|last=Kiel|first=Paul|date=February 6, 2008|title=White House Insists on Confirmation of Torture Memo Author|work=[[Talking Points Memo]]|url=https://talkingpointsmemo.com/muckraker/img-src-http-talkingpointsmemo-com-images-steven-bradbury-headshot-muck-jpg-vspace-5-hspace-5-align-left-white-house-insists-on-confirmation-of-torture-memo-author|access-date=April 18, 2019}}</ref><ref name="proforma">{{cite news|date=December 26, 2007|title=Webb opens, closes vacant Senate session|publisher=CNN|url=https://edition.cnn.com/2007/POLITICS/12/26/senate.pro.forma/index.html|access-date=October 26, 2019}}</ref> An opinion issued by the [[Government Accountability Office]] concluded that his status was not a violation of the [[Federal Vacancies Reform Act of 1998]].<ref name="gao">{{cite web|last=Kepplinger|first=Gary L.|date=2008-06-13|title=Federal Vacancies Reform Act of 1998-Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice|url=http://www.gao.gov/products/A82394#mt=e-report|access-date=2017-06-01|publisher=[[Government Accountability Office]]}}</ref> | ||
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====Barr letter==== | ====Barr letter==== | ||
{{main|Barr letter|Mueller report}} | {{main|Barr letter|Mueller report}} | ||
In March 2019, the [[Mueller special counsel investigation|Mueller investigation]] delivered its [[Mueller report|final report]] to attorney general [[Bill Barr]]. Even before reading the report, Barr had already made the decision to clear Trump of [[obstruction of justice]]. Upon receiving the report, Barr tasked the OLC with preparing a memorandum that would pretextually justify Barr's decision, instead of providing candid counsel.<ref>{{cite news |work=[[Washington Examiner]] |url=https://www.washingtonexaminer.com/news/justice/justice-department-releases-memo-barr-trump-obstruction-russia |title=DOJ releases memo advising Barr on not pursuing Trump obstruction charges | date=August 24, 2022 |first=Daniel |last=Chaitin |access-date=August 29, 2022 |quote='The court's ... review of the memorandum revealed that the Department in fact never considered bringing a charge,' the panel wrote in its opinion. 'Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller Report.' The panel added: 'We affirm the district court.' }}</ref><ref name="Mallin">{{cite news |url=https://abcnews.go.com/Politics/doj-releases-memo-ag-barrs-decision-prosecute-trump/story?id=88808145 |date=August 24, 2022 |title=DOJ releases memo behind Barr's decision not to prosecute Trump for obstruction |work=[[ABC News (United States)|ABC News]] |first=Alexander |last=Mallin |access-date=August 29, 2022 |quote=DOJ officials previously told the court that the memo should be kept from the public because it involved internal department deliberations and the advice given to Barr about whether Trump should face prosecution. But a district judge ruled that Barr was never engaged in such a process and had already made up his mind to not charge Trump. }}</ref><ref name="backs ruling">{{cite news |url=https://www.politico.com/news/2022/08/19/appeals-court-backs-ruling-to-release-doj-memo-on-trump-prosecution-00052880 |title= Appeals court backs ruling to release DOJ memo on Trump prosecution |work=[[Politico]] |date=August 19, 2022 |first1=Josh |last1=Gerstein |first2=Kyle |last2=Cheney |access-date=August 30, 2022 |quote=Srinivasan said the memo, co-authored by Assistant Attorney General for Legal Counsel Steven Engel and Principal Associate Deputy Attorney General Edward O'Callaghan, seemed more like a "thought experiment" because Barr decided before the memo was written that Trump would not be charged with a crime. }}</ref> This memorandum was written in tandem with the [[Barr letter]] over the course of two days;<ref>{{cite web |first=Eric |last=Tucker |date=May 5, 2021 |work= | In March 2019, the [[Mueller special counsel investigation|Mueller investigation]] delivered its [[Mueller report|final report]] to attorney general [[Bill Barr]]. Even before reading the report, Barr had already made the decision to clear Trump of [[obstruction of justice]]. Upon receiving the report, Barr tasked the OLC with preparing a memorandum that would pretextually justify Barr's decision, instead of providing candid counsel.<ref>{{cite news |work=[[Washington Examiner]] |url=https://www.washingtonexaminer.com/news/justice/justice-department-releases-memo-barr-trump-obstruction-russia |title=DOJ releases memo advising Barr on not pursuing Trump obstruction charges | date=August 24, 2022 |first=Daniel |last=Chaitin |access-date=August 29, 2022 |quote='The court's ... review of the memorandum revealed that the Department in fact never considered bringing a charge,' the panel wrote in its opinion. 'Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller Report.' The panel added: 'We affirm the district court.' }}</ref><ref name="Mallin">{{cite news |url=https://abcnews.go.com/Politics/doj-releases-memo-ag-barrs-decision-prosecute-trump/story?id=88808145 |date=August 24, 2022 |title=DOJ releases memo behind Barr's decision not to prosecute Trump for obstruction |work=[[ABC News (United States)|ABC News]] |first=Alexander |last=Mallin |access-date=August 29, 2022 |quote=DOJ officials previously told the court that the memo should be kept from the public because it involved internal department deliberations and the advice given to Barr about whether Trump should face prosecution. But a district judge ruled that Barr was never engaged in such a process and had already made up his mind to not charge Trump. }}</ref><ref name="backs ruling">{{cite news |url=https://www.politico.com/news/2022/08/19/appeals-court-backs-ruling-to-release-doj-memo-on-trump-prosecution-00052880 |title= Appeals court backs ruling to release DOJ memo on Trump prosecution |work=[[Politico]] |date=August 19, 2022 |first1=Josh |last1=Gerstein |first2=Kyle |last2=Cheney |access-date=August 30, 2022 |quote=Srinivasan said the memo, co-authored by Assistant Attorney General for Legal Counsel Steven Engel and Principal Associate Deputy Attorney General Edward O'Callaghan, seemed more like a "thought experiment" because Barr decided before the memo was written that Trump would not be charged with a crime. }}</ref> This memorandum was written in tandem with the [[Barr letter]] over the course of two days;<ref>{{cite web |first=Eric |last=Tucker |date=May 5, 2021 |work=Associated Press |url=https://apnews.com/article/politics-europe-government-and-politics-d1ca64dfd5d69f31a36cd1501d0c1caf |title=Judge orders Justice Dept. To release Trump obstruction memo |quote=In her order, Jackson noted that the memo prepared for Barr, and the letter from Barr to Congress that describes the special counsel's report, are 'being written by the very same people at the very same time. The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first,' the judge wrote. |access-date=August 29, 2022 }}</ref> the final version was signed by [[Steven Engel]] and [[Ed O'Callaghan]].<ref name="Mallin"/><ref name="backs ruling"/><ref>{{cite web |url=https://www.citizensforethics.org/wp-content/uploads/2022/08/2019.03.24-Memorandum-to-AG-from-DAG-re-Mueller-Report-Review.pdf |title=Memorandum for the Attorney General: Review of the Special Counsel's Report |via=[[Citizens for Responsibility and Ethics in Washington]] |work=[[United States Department of Justice]] |date=March 24, 2019 |access-date=August 30, 2022 |first1=Steven A. |last1=Engel |first2=Edward C. |last2=O'Callaghan |authorlink=Steven Engel |authorlink2=Ed O'Callaghan }}</ref><ref name=Lucas>{{cite news |first=Ryan |last=Lucas |url=https://www.npr.org/2022/08/24/1119322386/memo-barr-trump-mueller-doj |title=DOJ releases a Mueller-era memo to Barr on the decision not to prosecute Trump |work=[[NPR]] |date=August 24, 2022 |access-date=September 25, 2022 }}</ref> The D.C. Circuit held that the memo was not shielded from disclosure by the [[deliberative process privilege]], because then-attorney general Barr had already determined, by the time the memo was written, that DOJ would not charge Trump with a crime, making the memo akin to a "thought experiment."<ref name="backs ruling"/> | ||
====Whistleblower complaint==== | ====Whistleblower complaint==== | ||
{{main|Trump–Ukraine scandal}} | {{main|Trump–Ukraine scandal}} | ||
In September 2019, Engel authored an OLC opinion<ref>{{cite web |title='Urgent Concern' Determination by the Inspector General of the Intelligence Community |url=https://www.justice.gov/olc/opinion/file/1205711/download |date=September 3, 2019 |website=justice.gov |access-date=October 26, 2019 }}</ref> that the [[United States Department of Justice|Justice Department]] should not forward the [[Trump–Ukraine scandal]] whistleblower complaint to Congress.<ref>{{cite web |url=https://intelligence.house.gov/uploadedfiles/20190812_-_whistleblower_complaint_unclass.pdf |title=Declassified whistleblower complaint |orig-date=August 12, 2019 |date=September 26, 2019 |archive-url=https://web.archive.org/web/20190926123931/https://intelligence.house.gov/uploadedfiles/20190812_-_whistleblower_complaint_unclass.pdf |archive-date=September 26, 2019 }}</ref> In an October 2019 letter, 67 inspectors general from the [[Council of the Inspectors General on Integrity and Efficiency]] sharply criticized the Justice Department's decision to withhold the complaint from Congress, describing the memo as having a "chilling effect on effective oversight" and being "wrong as a matter of law and policy." The inspectors general recommended the OLC memo be withdrawn or amended because it "effectively overruled the determination by the ICIG regarding an 'urgent concern' complaint" that the ICIG concluded was "credible and therefore needed to be transmitted to Congress."<ref>{{Cite news|url=https://www.cnn.com/2019/10/25/politics/inspectors-general-olc-letter-whistleblower-opinion/index.html |date=October 25, 2019 |title=Coalition of Inspectors General slam DOJ opinion on whistleblower complaint |first1=Zachary |last1=Cohen |first2=David |last2=Shortell |work=CNN |access-date=October 26, 2019 }}</ref><ref>{{cite news |url=https://www.wsj.com/articles/u-s-watchdog-council-says-justice-erred-in-blocking-whistleblower-complaint-11572018755 |title=U.S. Watchdog Council Says Justice Department Erred in Blocking Whistleblower Complaint |work= | In September 2019, Engel authored an OLC opinion<ref>{{cite web |title='Urgent Concern' Determination by the Inspector General of the Intelligence Community |url=https://www.justice.gov/olc/opinion/file/1205711/download |date=September 3, 2019 |website=justice.gov |access-date=October 26, 2019 }}</ref> that the [[United States Department of Justice|Justice Department]] should not forward the [[Trump–Ukraine scandal]] whistleblower complaint to Congress.<ref>{{cite web |url=https://intelligence.house.gov/uploadedfiles/20190812_-_whistleblower_complaint_unclass.pdf |title=Declassified whistleblower complaint |orig-date=August 12, 2019 |date=September 26, 2019 |archive-url=https://web.archive.org/web/20190926123931/https://intelligence.house.gov/uploadedfiles/20190812_-_whistleblower_complaint_unclass.pdf |archive-date=September 26, 2019 }}</ref> In an October 2019 letter, 67 inspectors general from the [[Council of the Inspectors General on Integrity and Efficiency]] sharply criticized the Justice Department's decision to withhold the complaint from Congress, describing the memo as having a "chilling effect on effective oversight" and being "wrong as a matter of law and policy." The inspectors general recommended the OLC memo be withdrawn or amended because it "effectively overruled the determination by the ICIG regarding an 'urgent concern' complaint" that the ICIG concluded was "credible and therefore needed to be transmitted to Congress."<ref>{{Cite news|url=https://www.cnn.com/2019/10/25/politics/inspectors-general-olc-letter-whistleblower-opinion/index.html |date=October 25, 2019 |title=Coalition of Inspectors General slam DOJ opinion on whistleblower complaint |first1=Zachary |last1=Cohen |first2=David |last2=Shortell |work=CNN |access-date=October 26, 2019 }}</ref><ref>{{cite news |url=https://www.wsj.com/articles/u-s-watchdog-council-says-justice-erred-in-blocking-whistleblower-complaint-11572018755 |title=U.S. Watchdog Council Says Justice Department Erred in Blocking Whistleblower Complaint |work=The Wall Street Journal |date=October 25, 2019 |first=Dustin |last=Volz |access-date=October 26, 2019 }}</ref><ref>{{cite web |url=https://www.ignet.gov/sites/default/files/files/CIGIE_Letter_to_OLC_Whistleblower_Disclosure.pdf |title=Letter to Steven A. Engel |website=ignet.gov |date=October 22, 2019 |author=Council of the Inspectors General on Integrity and Efficiency |access-date=October 26, 2019 }}</ref><ref>{{cite web |url=https://lawandcrime.com/high-profile/ig-handling-fisa-probe-others-blast-olc-for-concluding-whistleblower-complaint-wasnt-urgent-concern/ |title=IG Handling FISA Probe, Others Blast OLC for Concluding Whistleblower Complaint Wasn't 'Urgent Concern' |website=[[lawandcrime.com]] |first=Matt |last=Naham |date=October 25, 2019 |access-date=October 26, 2019 }}</ref> | ||
== List of assistant attorneys general in charge of OLC == | == List of assistant attorneys general in charge of OLC == | ||