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Trevor Morrison on Libya, Process, and OLC

Benjamin Wittes
Friday, June 24, 2011, 4:33 PM
Columbia law professor Trevor Morrison has a new essay, posted at SSRN, entitled "Libya, 'Hostilities,' the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation." Among other things, the paper continues Morrison's ongoing exchange with Bruce Ackerman (see here and here) regarding the functioning of OLC. I asked Trevor to condense the argument for posting Lawfare.

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Columbia law professor Trevor Morrison has a new essay, posted at SSRN, entitled "Libya, 'Hostilities,' the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation." Among other things, the paper continues Morrison's ongoing exchange with Bruce Ackerman (see here and here) regarding the functioning of OLC. I asked Trevor to condense the argument for posting Lawfare. Here it is:
Whatever one makes of the merits of the Obama Administration’s conclusion that U.S. involvement in the Libya military campaign does not constitute “hostilities” for purposes of the War Powers Resolution (WPR), there may be a separate ground for concern.  According to press reports, the Administration followed a highly unusual process to arrive at its decision on the “hostilities” question, especially as regards the weight it allegedly gave (or, more precisely, allegedly failed to give) to the opinion of the Justice Department’s Office of Legal Counsel (OLC). I am not yet prepared to accept that these reports (presumably based on leaks from officials with their own self-serving agendas) provide a complete and accurate picture of what happened.  But the process issue is very important, and here I want to explore some of its dimensions.  In the course of doing so I will also say a few things about my ongoing exchange with Bruce Ackerman over legal interpretation in the executive branch. Deeply rooted traditions treat the Justice Department’s Office of Legal Counsel (OLC) as the most important source of legal advice within the executive branch.  OLC bases its answers on its best view of the law, not merely its sense of what is plausible or arguable.  And once OLC arrives at an answer, it is treated as binding within the executive branch unless overruled by the Attorney General or the President.  That power to overrule, moreover, is wielded extremely rarely—virtually never.  As a result of these and related norms, and in spite of episodes like the notorious “torture memos,” OLC has earned a well-deserved reputation for providing credible, authoritative, thorough and objective legal analysis. The White House is one of the main beneficiaries of that reputation.  When OLC concludes that a government action is lawful, its conclusion carries a credibility and legitimacy that other executive offices cannot so readily provide.  That credibility and legitimacy is a function of OLC’s deep traditions and unique place within the executive branch.  Other executive offices—be they agency general counsels or the White House Counsel’s Office—do not have decades-long traditions of providing legal advice based on their best view of the law after fully considering the competing positions; they have not generated bodies of authoritative precedents to inform and constrain their work; and they do not issue legal opinions that, whether or not they favor the President, are treated as presumptively binding within the executive branch.  (Nor should those other offices mimic OLC; that is not their job.) In his 2010 book The Decline and Fall of the American Republic and related writings, Bruce Ackerman attacks the current state of legal interpretation within the executive branch, especially the roles played by OLC and the White House Counsel’s Office.  Ackerman argues that excesses like the “torture memos” are not abusive anomalies, but are instead the inevitable (and sure to be repeated) products of an institutional setup that cannot be trusted to produce serious, good faith legal analysis, especially on issues of presidential power. In a review of Decline and Fall, I argue that Ackerman greatly overstates things.  Although I acknowledge that the current institutional arrangement is not perfect and that some reforms are worth contemplating, I maintain that the evidence does not support the claim that the current setup cannot be relied upon to provide credible, good-faith legal analysis as a general matter.  In fact, the existing arrangement has proved itself remarkably reliable over the years.  OLC is the key to that reliability. In a June 21 op-ed harshly criticizing the decision-making process on the “hostilities” question, Ackerman appears to shift ground.  He lambasts the process in this case precisely because he says it did not treat OLC’s legal analysis as presumptively binding and thus drastically departed from “traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.”  The problem, in other words, is not the traditional institutional arrangement for the provision of legal advice within the executive branch, but the apparent departure from that arrangement in this case.  To the extent Ackerman now sees OLC’s traditional role as something worth preserving, not abolishing (as he argued in a 2009 piece in Slate), he and I are very much in agreement. But what actually happened in this case?  Was there a significant departure from tradition?  If so, what was it?  The press reports certainly depict an anomalous process.  They suggest that, sometime before the Libya campaign reached the 60-day mark on May 20, the White House Counsel’s Office collected the views of OLC, the Attorney General, the General Counsel of the Defense Department, and the State Department’s Legal Adviser and presented them all to the President (along with the Counsel’s Office’s own views) for resolution.  OLC, the Attorney General, and the DOD General Counsel all reportedly took the position that continued U.S. involvement in the Libya campaign at the levels that had existed since early April amounted to “hostilities” under the WPR.  According to press accounts, the State Department’s Legal Adviser and the White House Counsel thought otherwise.  The President reportedly agreed with their analysis, thus resolving the need for congressional authorization when “hostilities” continue beyond 60 days by concluding that U.S. involvement simply did not rise to the level of hostilities. The process described in these press reports has a number of problems.  Perhaps most critically, it suggests that OLC’s opinion was presented to the President as just one perspective on the issue.  On this account, the various legal opinions were treated like competing policy recommendations, each one deserving roughly comparable weight, with no strong initial presumption in favor of any of them. To be clear, a decision-making process of that sort would be perfectly constitutional.  The Constitution does not require that there be an OLC at all, much less one whose legal opinions are treated as authoritative throughout the executive branch.  But there is an OLC, and its value to the executive branch depends heavily on the time-honored tradition of treating its legal opinions as presumptively binding.  The process depicted in the press reports is a departure from that tradition. I am not yet confident, though, in the accuracy of the press reports.  From my own time in public service I know all too well that the reality of government decision-making is often much more complicated than appears in the press.  Thus, at this point I do not think we are in a position to diagnose precisely what happened. We can, though, identify what an appropriate process would have been.  There are a number of steps here. To start, it bears emphasizing that the “hostilities” question was clearly one that OLC should address.  OLC does not address every legal question in the executive branch, nor could it.  In my review of Ackerman’s book, I suggest that the kinds of questions that should go to OLC include:  “(1) legal issues that OLC has a history of addressing and on which it therefore has an accumulated jurisprudence and expertise; (2) significant issues of executive power; and (3) programs or policies likely to trigger substantial public attention and/or controversy.”  The “hostilities” question is all of the above. Moreover, at the outset of the Libya operation, the Administration relied publicly on a written opinion by OLC concluding that the President had the authority to commit U.S. military forces to the operation without prior congressional authorization.  Given that, it would have been especially inappropriate not to consult OLC on the related, follow-on “hostilities” question.  Indeed, ideally OLC would have been analyzing and providing at least preliminary advice on the contours of that issue from the very beginning of the operation.  (For all I know, that is exactly what happened.)  Sixty days pass quickly; OLC’s legal advice is most useful when conveyed in sufficient time for policy makers to plan accordingly. Next, in analyzing the issue OLC should have sought and given full consideration to the views of other affected agencies, especially the State and Defense Departments.  The press accounts claim that the views of the DOD General Counsel and the State Department’s Legal Adviser were routed through the White House Counsel’s Office to the President, for consideration along with OLC’s views.  It is possible OLC also had the benefit of those views earlier in the process, as it worked on the issue.  But if it did not, it should have.  The traditions that require OLC to provide answers based on its best view of the law and that then treat those answers as binding presume and require that OLC has the benefit of the best thinking of all substantially affected agencies and that it adequately weighs their interests in its analysis. Once OLC arrived at its conclusion, it should have been clearly conveyed to the relevant parties, ideally in writing.  Reducing the opinion to writing is not always possible when time is short, but where it is feasible it helps clarify the precise terms and bounds of OLC’s position. The recipients of OLC’s opinion (whether written or oral) should have regarded it as the presumptively final word on the “hostilities” question.  The President certainly retains the authority to overrule OLC, but the traditions of executive branch legal interpretation do not contemplate routine relitigation before the President.  Still, on matters of grave consequence where affected agencies strongly disagree with OLC’s analysis, there is nothing categorically inappropriate in their seeking presidential review.  Yet any such presidential review should proceed on the understanding that OLC’s analysis should be adhered to in all but the most extreme circumstances. Presidential overruling should be rare because it can carry serious costs.  To start, it can undermine OLC’s ability to produce legal opinions consistent with its best view of the law.  Agency general counsels and the White House Counsel’s Office may approach legal questions not with the goal of seeking the best view of the law, but with the aim of finding the best, professionally responsible legal defense of their client’s preferred policy position.  There is nothing wrong with that.  But if the President routinely favors legal views of that sort over OLC’s conclusions, the traditional rationale for having an OLC at all will be undermined.  OLC’s work product is significant today in large part because of the time-honored understanding that its conclusions are presumptively binding within the executive branch.  Routine presidential overruling would weaken the presumption, which in turn would diminish the significance of OLC’s work and reduce its clients’ incentive to seek its views.  To remain relevant, OLC would likely start intentionally tilting its analysis in favor of its clients’ (here, the President’s) preferred policies.  Put another way, the strong presumption in favor of the authoritativeness of OLC’s analysis provides OLC with the institutional space and cover to provide answers based on its best view of the law.  If the former is weakened, the latter is jeopardized. Just as the White House benefits greatly from OLC’s reputation for providing authoritative opinions based on its best view of the law, undermining that reputation can do real harm to the long-run institutional interests of the White House.  If the presumption in favor of OLC’s authoritativeness is undermined, then in cases when the White House relies on an OLC opinion to establish the legality of a policy or program, outside observers will suspect it is mere opportunism—that the White House is invoking OLC merely because OLC said “yes.”  At that point, the benefit of being able to point to OLC as a source of authoritative, credible legal analysis will be lost. Moreover, as I explain further below, in the short run any departure from OLC’s analysis is sure to raise serious questions.  If OLC is set up to provide presumptively authoritative legal answers based on its best view of the law and if the competing views of other agencies are liable to be functions of their policy preferences and not simply their best legal views, how does the President justify departing from OLC’s views?  What legal rationale can he provide?  Is it credible?  If not, what does that say about his administration’s commitment to legal principle? I am not saying a President can never adequately answer these questions.  In rare situations, especially where OLC itself agrees the issue is extremely close, it could be possible to provide a principled justification for departing from OLC’s position.  But any such departure is bound to trigger these questions.  That, plus the longer-run costs noted above, needs to be part of the President’s calculus. It is worth thinking about measures that could help ensure the decision-making process takes all these costs into account.  Here I will note two.  First, before favoring another agency’s views over OLC’s, the President should require them to be reduced to writing whenever possible.  Great care must be taken to ensure that agency views opposing OLC are sufficiently well grounded and defensible to withstand the public skepticism that will inevitably follow when the President favors them over OLC.  Putting those views in writing can help in that regard.  Second, whenever there might be a risk of presidential overruling, OLC should secure the active support of the Attorney General before conveying its position to the White House.  And if the President then seriously contemplates overruling OLC’s position, the Attorney General should weigh in with the President directly.  In doing so he should not only defend OLC’s analysis (and make clear he agrees with it) but also underscore to the President the short- and long-run costs of overruling OLC.  That is a message appropriately conveyed by the Attorney General. Again, none of this would deny that the President has the authority to overrule OLC.  But the President will not be well served unless he is given a full appreciation of the medium- and long-run institutional costs involved. In his book, Ackerman laments that the White House Counsel’s Office has “often” ousted OLC from its privileged position as the source of authoritative legal advice within the executive branch, instead generating its own legal opinions blessing particular programs if it appears OLC would have said no.  This repeated end-running of OLC has happened, Ackerman argues, “without anybody considering it improper.”  In my review of his book, I show that Ackerman is wrong in this charge.  Although there certainly is a risk that the White House Counsel might displace OLC and although that sort of thing is not literally unprecedented, the notion that it has happened often over the years without anyone thinking it amiss is incorrect. Why hasn’t it happened more often?  Part of the answer, as I explain in my review, is that powerful incentives discourage displacing OLC from its traditional role: The very institutional factors that make the Counsel’s Office more likely to say yes to the President also make its advice dramatically less valuable when trying to defend an action to a skeptical third party—whether Congress, the press, or perhaps ultimately a court.  As long as OLC retains its reputation as a source of authoritative and credible legal analysis, relying only on the White House Counsel to answer questions that would ordinarily go to OLC is extremely risky.  Were an administration to point to advice from the Counsel’s Office on such a matter, it would provide a barrage of questions:  Did the White House seek and opinion from OLC?  If so, what did OLC say?  If not, why not? These questions parallel the kinds of questions that are inevitable when the President overrules OLC.  Indeed, the institutional incentives against too readily overruling OLC are basically the same as the incentives again ousting OLC altogether.  In either case, the White House will face difficult questions from the press and will be exposed to political attack by its adversaries in Congress. These questions and criticisms underscore how wrong it is to suppose that OLC can be ousted from its role “without anybody considering it improper.”  Indeed, the notion that a President determined to pursue a particular policy can simply cast about for a favorable legal opinion and then rely on it with impunity ignores the reality of government today.  As long as the President’s decision is publicly disclosed, questions about the substance and process of the decision will be asked.  Answers that depict a highly anomalous process will raise further questions.  That may be the ultimate check here:  the prospect of public criticism and political reprisal encourages the White House to maintain OLC’s traditional role even when doing so cuts against its immediate policy preferences.  That is as it should be. I do not envy those now serving in the Obama Administration whose job it is to plot a way forward, given where we now are on the “hostilities” question.  But however this particular episode is resolved, it is critical for the long-term health of executive branch legal interpretation that the Administration reaffirm its commitment to treating OLC’s legal analysis as presumptively binding.  That is the best way to restore and preserve what Ackerman rightly calls the “traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.”

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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