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• Tuesday, May 15, 2007 07:08 PM

  The OLC: "a kind of mini Supreme Court"

  To follow this narrative, it helps to know that

  1. The OLC is "a kind of mini Supreme Court".

  2. The OLC changed hands in 2003.

  3. The new guy, Goldsmith, reversed some of Bybee's opinions.

  http://msnbc.msn.com/id/11079547

  By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas
  Newsweek

  Feb. 6, 2006 issue

  . . . Addington was just getting started. Minimizing dissent by going behind the backs of bureaucratic rivals was how he played the game. A potentially formidable obstacle, however, was the Justice Department's Office of Legal Counsel. The OLC is the most important government office you've never heard of. Among its bosses—before they went on the Supreme Court—were William Rehnquist and Antonin Scalia. Within the executive branch, including the Pentagon and CIA, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent—final say on what the president and all his agencies can and cannot legally do.

  . . . [In 2003, after Bybee left the OLC,] Jack Goldsmith, a law professor who was working in the general counsel's office at the Pentagon, was the eventual compromise choice to head the OLC. Goldsmith seemed like a natural fit. He was brilliant, a graduate of Oxford and Yale Law School, and he was conservative. Like Yoo, he was tagged a "New Sovereigntist" for his scholarly argument that international laws including prohibitions on human-rights abuses should not be treated as binding law by the U.S. courts.

  But somehow, in the vetting of Goldsmith, one of his important views was overlooked. Goldsmith is no executive-power absolutist.

  . . . Addington soon suffered pangs of buyer's remorse over Goldsmith. There was no way to simply ignore the new head of the OLC. Over time, Addington's heartburn grew much worse. In December, Goldsmith informed the Defense Department that Yoo's March 2003 torture memo was "under review" and could no longer be relied upon. It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself.

  . . . It was Goldsmith's job to advise the A.G. on the legality of the ["Terrorist Surveillance"] program.

  . . . The White House was told: no reauthorization.

  Now, here comes the part where Newsweek got steered wrong in 2006.

  [USDOJ and OLC] imposed tougher legal standards before permitting eavesdropping on communications into the United States.
  - - Newsweek, Feb. 6, 2006

  Technically, that sentence is true, but what actually happened, as confirmed today, is that the White House kept going anyway, even without permission from the OLC. The White House continued the "T.S.P." -- without making any concessions to "tougher legal standards" -- even after the USDOJ and OLC had told the White House that the "T.S.P." was illegal.

  —sysprog Read sysprog's other letters
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