The opinions by the Attorney General and the Office of Legal Counsel: how and why they are significant.

• Author: Garrison, Arthur H.

Abstract

Although much research has been done on the opinions issued by the Office of Legal Counsel (OLC) regarding the power of President Bush to order enhanced interrogations of captured enemy combatants, and the power of the President, as commander in chief, to act to address the events of September 11, 2001, and prevent future attacks, there has been much less research on explaining the source of the power and significance of OLC opinions within the Executive Branch. This article will focus on the historical basis and legal significance of opinions by the Attorney General, and later those of the OLC. This article will explain why and how opinions on the meaning and applicability of the law issued by the Attorney General, dating from those of General Randolph to General Holder and those of the OLC, have historically been quasi-judicial in approach and determinative within the Executive Branch.

1. INTRODUCTION

   After the attacks of September 11, 2001, the Bush Administration's Department of Justice OLC issued a series of memos that stated that the President had the exclusive constitutional power (1) to detain enemy combatants, (2) to bypass the Uniform Code of Military Justice (UCMJ) and initiate military commissions to try such combatants, and (3) to determine what types of techniques could be initiated to secure information from captured enemy combatants from the military operations in Afghanistan and Iraq. (1) Subsequent to the issuance of these memos much ink has been spilled on the legality of the actions made by the Bush Administration. (2) What all of these critiques have not included is an analysis of why the opinions by the Attorney General and the OLC (3) were determinative within the executive branch.

   Every President from Washington to Obama has received legal advice regarding a proposed action or policy. (4) Foreign policy and domestic policy under our Constitution is measured by its legality. All presidents seek to act within the law and the Constitution. The Constitution itself requires and obligates the President to "take [c]are that the [1]aws [are] faithfully executed[.]" (5) It is this responsibility that requires the President to first determine what the law requires and then to act accordingly. (6) Historically, the main agency within the executive branch to aid the President in both maintaining and obeying the law has been the Office of the Attorney General. (7) This article will focus on two issues. First, what is the historical purpose and authority of the Office of the Attorney General? (8) And second, how has the Office of the Attorney General, and later the OLC, developed into the plenary legal opinion agency within the executive branch? This article traces the history of the Office of the Attorney General and the OLC to meet a gap in the literature on presidential legal policymaking and the role of the rule of law that governs executive decision-making; specifically, it is a detailed review of the origin and purpose of the Office of the Attorney General and the why that underlies the purpose and unique role of this office to act as defender of the rule of law (9) regardless of political and policy expediencies, (10) After the attacks of 9/11, it was the OLC, not President Bush himself, which received almost unprecedented attention by the legal community. (11) It is by clearly understanding the history and historic role of the OLC can the significant attention given to the Bush OLC be understood.

2. THE ORIGIN AND PURPOSE OF THE OFFICE OF THE ATTORNEY GENERAL

   The position of Attorney General was not always among the pantheon of cabinet secretaries within the executive branch. (12) Former Attorney General William Barr, in a presentation at Cardozo Law School, observed that the position was originally a part-time position with no staff, office space, or supplies, with an annual salary of half of the other cabinet secretaries. (13) Since the Attorney General was authorized only to handle legal matters and cases in which the U.S. government had an interest, and not to enforce the law as it is now constituted, (14) "[i]n offering the job to Edmund Randolph, the first Attorney General, George Washington suggested that it would help him attract clients." (15) While advocating for support for elevating the Office of the Attorney General to full-time status with a salary and administrative support equal to other cabinet secretaries, as well as seeking support for legislation placing control of all government legal affairs under the direction of the Attorney General, Attorney General Caleb Cushing,

   in an 1854 opinion, explained to President Franklin Pierce how President Washington convinced Edmond Randolph to take the appointment. (16) Attorney General Caleb Cushing noted:

   When the office of Attorney General was created, and for long afterwards, inequality existed between his salary and that of other officers of the same class. The reason why he received less than the others is given by Washington in his letter to Mr. Edmund Randolph, tendering to him the first appointment of Attorney General, in which he says: "The salary of this office appears to have been fixed at what it is from a belief that the station would confer pre-eminence on its possessor, and procure for him a decided preference of professional employment." On this basis things continued until a very late period, the Attorney General receiving less salary than his associates, but being invited, as it were, by the nature of the office, into private professional practice in the courts, for which his near association with the Government, united to the professional qualifications which, from his being appointed to the office, he may be assumed to possess, would serve to give him great advantages. (17) The Attorney General did not have a department to supervise for eighty-one years after its creation, (18) The United States Justice Department came into existence on July 1, 1870, (19) with the purpose of centralizing litigation involving the United States under the authority of the Attorney General. (20) Although the Attorney General was granted authority to oversee all criminal and civil litigation involving the national government by the 1870 statute, (21) actual administrative, supervisory, and budgetary control over all litigation attorneys within the national government was not completely established until 1966. (22) The modern Justice Department only came into existence in 1934 when it was given a centralized location and an office building. (23) From its questionable start, the Attorney General has grown to be described as a position "quite apart from the Department, [as] a symbol of the effort of a democracy to achieve a form of justice," (24) because, in part,

   the Attorney General's office was created originally and has been continued in the Judiciary Act, not in the executive branch statutes. The ... duty of the Attorney General [is] to act as professional custodian of the law for the executive departments.... [T]here is [a] separate responsibility that the Attorney General has, and that no other cabinet department has, to uphold and preserve the law and to do so according to legal standards[,] (25) not political ones.

   Originating with the Judiciary Act of 1789, the Attorney General was authorized to advise both the President and agency heads on questions of law. (26) The position of the Attorney General was modeled after the English Attorney General and those of the several states. (27) The Attorney General was not considered a political member of the administration but the government officer responsible for representing the United States in court. (28) From its inception, the Attorney General was viewed in a judicial light, as evidenced by the wording of the original draft of the bill creating the office, which placed the appointment authority in the federal judiciary. (29) The Office of the Attorney General was not provided any staff or funding after its creation and from the appointment of the first Attorney General in 1789 through those of the mid-nineteenth and early twentieth centuries, successive Attorneys General sought to establish and maintain the credibility, necessity, and prestige of the office within the executive branch. (30)

   In 1854, Attorney General Caleb Cushing provided President Franklin Pierce with a detailed opinion on the executive functions of the various departments, the powers enjoyed by the President as the chief executive of the nation, and the role and duties of the Office of the Attorney General. (31) Cushing's 1854 opinion is the first formal explanation, by an Attorney General, on the "quasi-judicial" stature of the office. (32) Cushing wrote that the position of Attorney General was created within the Judiciary Act of 1789, not as a separate government department as the departments of State, War, and Treasury were created. (33) The creation of the Attorney General within the Judiciary Act has significance in understanding the role of the Attorney General in determining and settling questions of law, legal policy, and public policy raised by the President and/or heads of the executive departments, (34) Cushing opined that the

   Attorney General has "quasi-judicial" power within the executive branch to provide the President and his heads of departments with authoritative and final determinations on the meaning of the law. (35) Cushing opined in 1855:

   If an administrative act involve [sic] legal questions, as to which the President or a Head of Department entertains doubt, or as to which doubts may exist in the public mind, and require to be removed or encountered, then the opinion of the Attorney General is demanded. If that opinion is accepted, as it usually is, as the law of the case, although the responsibility of action still is participated in by all the coactors, yet of course a greater relative weight of responsibility devolves on the Attorney General. (36) In an opinion a...