The Decline of OLC

Jack Goldsmith
Wednesday, October 28, 2015, 6:11 PM

Just before the beginning of the Obama administration, in the Afterword to the 2009 paperback edition of the The Terror Presidency, I wrote:

Published by The Lawfare Institute
in Cooperation With

Just before the beginning of the Obama administration, in the Afterword to the 2009 paperback edition of the The Terror Presidency, I wrote:

My withdrawal of some of the flawed opinions, the related backing away from OLC positions by many throughout the Bush administration, and the promised housecleaning of OLC opinions by the new Obama administration have weakened the currency of OLC opinions. Many people in the CIA have told me that the agency will never again view OLC opinions as a “golden shield” from legal scrutiny. In the future the CIA will seek opinions from OLC less often and will invariably supplement legal advice from OLC with a political risk assessment.

Some of the reasons I gave for this conclusion have proved right and some wrong, and some reasons I missed altogether. But there is no doubt that OLC's authority and influence have in general diminished by comparison to prior administrations of both parties. Many people who would know have told me that OLC’s advice is now sought much less than in the past, especially in national security decisions. A few people have told me that OLC simply has no place at the table in important national security decisions. And now today, Charlie Savage reports, in an article derived from his forthcoming book, that the President received legal advice about the 2011 Bin Laden operation in deep secrecy that cut out the Attorney General and OLC.

The real news here is that the AG was not told about the Bin Laden raid. That is very hard to understand or justify. The failure to consult OLC is only a little less surprising. Rather than focus on the particular Bin Laden case, or the cut-out of the AG, I want to offer some reasons why OLC's legal advice has been sought less in recent years, and why OLC has played a less authoritative role. (I will have more to say on related matters once Savage’s book is published.)

* I know from first and second-hand conversations that some important lawyers in the Obama administration came to Office thinking that OLC had too much sway in prior administrations. And then the sky did not fall when Attorney General Holder, early in the administration, reportedly overruled an OLC opinion on the unconstitutionality of a D.C. voting rights bill after the Acting Solicitor General advised him he could defend the law in court.

* OLC has not had a confirmed head for most of the last 7 years. (Virginia Seitz was the confirmed head for about 2.5 years in 2011-13; indeed, it has had a Senate-confirmed head of the Office for only five or so of the last 21 years.) In general, OLC has more authority when its head is Senate-confirmed. There are many exceptions to this, to be sure. Sometimes the Office is weak with a confirmed head and sometimes it is strong with an Acting head. But all things equal, OLC has more institutional power when its leader is Senate-confirmed.

* Other important departments and agencies had very powerful general counsels during the Obama administration – Jeh Johnsen at DOD, Stephen Preston at CIA, and Harold Koh at State. And the President has had mostly very powerful, centralizing White House Counsels.

* The DOJ’s National Security Division was born in 2006. It is more involved in everyday national security decisions than OLC, and has usurped some of OLC’s national security expertise and authority. (OLC had no such competitor within DOJ prior to 2006.)

* Several people in the administration have told me that OLC has gotten very slow in issuing its national security opinions. The intelligence agencies have relied on their own counsel or gone elsewhere for legal advice—to the White House or to inter-agency deliberations.

* More and more OLC opinions than ever before are being sought and released via FOIA. Intelligence clients don't like publicity about their programs. So they don't seek OLC advice as often. (Other agencies’ opinions can be sought via FOIA, but to date most of the focus has been on OLC.)

Not all of these factors are in play every time OLC is not consulted or plays a diminished role. But taken together, they explain, I think, why OLC is not in the place it used to be, at least in the national security context. Nothing in stone, or law, requires the White House or the intelligence or defense agencies to consult OLC. There are good reasons why it is usually good practice to keep OLC – a relatively independent institution inside the executive branch – in a prominent position in important national security deliberations. But I will leave that discussion to another day.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Subscribe to Lawfare