Closely Held Contrivances

This month marks 20 years since the September 11 attacks and also 20 years since the government commenced its global and unending war on terror. This “war” has many costs: nearly 1 million people killed in violence; $8 trillion in U.S. spending; and a series of reprehensible policies, from torture to warrantless surveillance to extrajudicial drone strikes. And one entity has had an outsized role in providing legal cover for the government’s counterterrorism abuses: the Justice Department’s Office of Legal Counsel.

The office, generally known as OLC, is responsible for advising the president, attorney general, and federal agencies on whether proposed actions and policies are legal. During the war on terror, OLC drafted memos approving the warrantless surveillance of U.S. citizens, the torture of detainees suspected of terrorism ties, and drone strikes against U.S. citizens. OLC’s tendency to tell the White House what it wants to hear is a common and important criticism of the office, extending to many matters beyond the drone strike, surveillance, and torture memos. But because these actions are extreme, the office’s approval of them has rightly become a focal point in the discussion about whether and how to reform OLC in order to prevent presidents from amassing powers they should not have.

The government has tried to hide its horrifying conduct for years, keeping the public and policymakers (and, in some cases, the courts) in the dark about torture, targeted killings, and mass surveillance. That secrecy extended to OLC’s analyses. OLC is notorious for its lack of transparency, even on mundane issues. When it came to these secret programs, that secrecy was taken to extremes. Information that has since come to light shows how OLC’s secrecy helped enable the executive branch’s shameful legal justifications for its conduct and underscores why significant reforms are necessary to prevent future abuses.

The Memos

The executive branch’s justifications for torture, surveillance, and drone strikes are recorded in a series of OLC memos, the written analyses in which the office evaluates the legality of government actions. Many experts have thoroughly examined the serious flaws of those memos. This piece doesn’t seek to rehash those flaws, and it certainly lacks the space to cover all of them. But it’s useful to have a sense of some of the most glaring issues.

In a series of memos written in 2002 and 2003, OLC concluded that what the CIA called “enhanced interrogation techniques” did not violate various legal prohibitions against torture. To reach this conclusion, the memos set an absurdly high bar for what counted as torture and suggested that an interrogator could defend against prosecution by claiming their intent was to obtain information rather than inflict pain for pain’s sake. The memos further claimed that laws prohibiting torture might be unconstitutional because they limit a president’s powers as commander-in-chief. And, in a highly unusual move for OLC, the office suggested additional ways for officials to defend themselves in court if they were accused of committing torture.

In a November 2001 memo, OLC approved the vast surveillance program known as Stellar Wind, which involved collecting communications content and metadata , including from conversations involving U.S. citizens. As in the torture memos, the Stellar Wind memo relied on a sweeping view of presidential power, concluding that presidents have the right to conduct warrantless searches in the name of national security. But it did not discuss the key Supreme Court precedent that governed the limits on presidential power in similar contexts. And the most glaring flaw in this analysis was that it ignored — indeed, explicitly denied the existence of — a provision in the Foreign Intelligence Surveillance Act that limited surveillance authority in exactly the sort of wartime scenario the administration claimed existed after 9/11.

The legal justifications for drone strikes— one of the most pernicious tools of the war on terror — remain mostly shrouded in secrecy. What we know is that in 2010, OLC wrote a lengthy memo concluding that it would be legal to kill Anwar Al-Awlaki, a U.S. citizen in Yemen whom the government had deemed a terrorist threat. The net effect of that memo was a legal doctrine that the executive branch, without input from the courts, can conclude that a citizen poses a terrorist threat and kill them overseas, despite the Constitution’s guarantee of due process.

It’s crucial to recognize that the legal and analytical flaws in these memos were not merely academic problems. They allowed the government to torture people by putting them in coffin-sized boxes, keeping them awake for days on end, and simulating drowning. They allowed the government to spy on Americans’ communications with utter disregard for the Constitution’s limits on such spying. They continue to allow the government to carry out extrajudicial killings. And, because the Justice Department won’t pursue charges against officials who act pursuant to an OLC opinion, they gave everyone involved a free pass. OLC’s failures harm people and harm the country.

Closely Held Contrivances

The OLC memos illustrate two levels of secrecy: within the executive branch, and between the government and the public. We know about the internal secrecy that accompanied the torture and Stellar Wind memos because they were the focus of highly detailed — and largely declassified — investigations. And while we don’t have as much insight into the process behind the drone strike memo, we do know the lengths the government went to in order to hide it from the public, and some of the costs of that secrecy.

As the investigations later revealed, the processes OLC used to approve both the torture and surveillance programs were notable for how few people were allowed to know about the programs in the first place. Both were orchestrated by a small circle of officials in the White House that included White House counsel Alberto Gonzales and David Addington, counsel to Vice President Dick Cheney. And other than the OLC lawyers who wrote the opinions, almost nobody else knew about them. As Stanford law professor Janet Cooper Alexander wrote for the California Law Review, having an author with strong views writing exclusively for “a small group of like-minded officials” who were unafraid to make their preferences known created a “perfect storm” that allowed them to approve illegal and immoral policies.

In the case of the CIA’s torture program, only a handful of officials at the Justice Department were informed, including Attorney General John Ashcroft, OLC head Jay Bybee (now a judge on the U.S. Court of Appeals), and OLC deputies John Yoo and Patrick Philbin. Most glaringly, the State Department was left out of the process, despite its considerable expertise about questions of international law that govern the treatment of prisoners.

The secrecy was even more pronounced in the case of the surveillance program. Only a single lawyer at OLC — Yoo — was informed about the program. Not even Bybee, the head of the office, knew. As the Justice Department inspector general later wrote, this “represented an extraordinary and inappropriate departure from OLC’s traditional review and oversight procedures,” which typically involve peer review by staff within the office and by other stakeholders in government. Even the National Security Agency, which was responsible for conducting the surveillance, lacked access to the legal justification for its actions.

Yoo was the primary author of the torture and Stellar Wind memos, one of the small circle of people aware of the programs who had a great deal of influence over their final form. As Alexander notes, Yoo had been a professor before joining OLC, and in 1996 had published a law review article articulating an extremely broad view of presidential powers, especially in wartime. Working with little supervision, Yoo’s formulation of presidential power, which was (and still is) far outside the mainstream, became official government policy. The intense secrecy also allowed White House officials to steer OLC’s review toward the outcome they favored.

Government investigators who reviewed the memos agreed that excessive secrecy played a key role in enabling their flawed analysis. The Justice Department Office of Professional Responsibility, which investigates attorney misconduct, noted, “the restrictions added to the failure to identify the major flaws” in the torture memos. The department’s inspector general similarly found that excessive secrecy within government prevented OLC from providing “the soundest possible legal advice” in the surveillance memos.

As more officials became aware of the memos and their content, criticism poured in. Lawyers in the Navy and the State Department strenuously objected to the torture memos’ conclusions. Yoo and Bybee’s successors at OLC concluded that they could not stand behind several of the memos, a view that spread to a number of other Justice Department officials. These officials’ concerns led to the review and revision of both the surveillance and torture memos. Several years after that, the Obama administration revoked all of the torture memos.

Given the intense secrecy, it likely goes without saying that the public had no idea these programs, or the memos that authorized them, existed. When news about the programs began to leak, it was met with outrage from many corners. Perhaps most notably, Congress acted to clarify the prohibition against torture in the 2005 Detainee Treatment Act. Eventually, in 2014, Congress explicitly barred the CIA from using the techniques OLC had approved.

When news about aspects of Stellar Wind came out, Congress took the opposite tack, codifying part of the program in 2007. While it would have been far better for Congress to end the program, it’s at least preferable to have a bad program debated by Congress than implemented in secret by the president. But the metadata collection program remained secret until 2013; Congress finally ended it in 2015.

As for the memo justifying drone strikes on a U.S. citizen, Anwar al-Awlaki, the Obama administration spent years fighting to keep it secret, until a court ordered its release in 2014.

The administration’s determination to keep the drone memo hidden from the public came despite an episode in which public commentary arguably saved OLC from a significant problem. OLC had originally approved a strike against al-Awlaki in a relatively short memo. That memo remained a secret, but news leaked that he had been added to the CIA’s kill list. When the story broke, a law professor pointed out in a blog post that there is a statute that prohibits U.S. citizens from killing other U.S. citizens abroad. As we’ve since learned, OLC had approved the strike without discussing that law — an omission that, if left unaddressed, could have resulted in a scandal on par with the discovery of the flaws in the Stellar Wind memo. Instead, after seeing the professor’s comment, OLC wrote a second, more detailed memo. Unfortunately, the administration did not take the episode as a lesson in the virtues of fostering public awareness of legal decision-making.

Not the End of the Story

Ending the story here could give the impression that a little sunlight is all that’s necessary to keep OLC in check. To be sure, when the 2002-2003 surveillance and torture memos were revised, the new versions eliminated some of the most disturbing and far-reaching legal arguments about presidential power, a positive development. But despite the outrage at the revelations of torture and warrantless wiretaps, despite congressional action, despite the serious concerns of lawyers from across the government, and despite the revisions, almost nothing else changed. The new memos, written by new lawyers, reapproved almost all of the programs.

In a series of memoswritten from 2004 to 2007, OLC once again opined that the CIA’s abuses were not torture, laying out in excruciating detail how things like waterboarding remained perfectly allowable, even as Congress amended the law to try to limit such conduct. Similarly, a 2004 memo on the Stellar Wind surveillance program found that most of it was legal. The new memos were less likely to rely on sweeping statements about presidents’ power to do whatever they want, but narrower reasoning led the office back to the same dark place.

And the targeted killings abroad continue. The al-Awlaki memo was eventually released, but reports indicate that there are 10 other OLC opinions that deal with targeted killings, including three others relating specifically to U.S. citizens. None have been released to the public, and senators have only seen a handful. In the meantime, the drone program has accelerated, with one estimate finding the U.S. conducted at least 14,000 drone strikes in Afghanistan, Yemen, Pakistan, and Somalia between 2010 and 2020.

Transparency Plus

One of the enduring lessons of these post-9/11 memos is certainly that openness and transparency are important. If the public and Congress know what the executive branch is up to, there’s a much better chance that laws can be changed or new leadership can be elected. And if the government knows that it cannot hide its worst conduct, it may be far less likely to conduct such abuses in the first place. This is why POGO has long called for OLC’s memos to be published.

Similarly, giving more officials the chance to weigh in on a program, especially before a decision is made to give it legal authorization in the first place, can certainly help reduce the odds of a small group of people committed to a preordained outcome gaming the system. To ensure more people are involved in the decision-making process, we’ve endorsed ideas like assigning lawyers in OLC to write dissents, ensuring that the opposite viewpoint is fully considered.

But it’s clear that transparency and open decision-making on their own are not enough to prevent abuses. Even when people inside and outside of government had gone on the record very clearly about the flaws with the original memos, the outcomes remained the same.

Lasting reforms have to change more fundamental dynamics that enable OLC to consistently expand executive power.

While it took far too long, the office did eventually repudiate most of the worst memos, including those from the first few years after 9/11 and the subsequent memos that reapproved torture. This could not undo the damage the programs caused. But OLC prides itself on adhering to its “precedents,” so revisiting those memos was an uncommon and important step that at least meant future lawyers in the office couldn’t look back to those arguments and apply them to new situations, causing even more damage.

Unfortunately, revisiting and revoking past work remains too rare. OLC recently distanced itself from a different Trump-era opinion, another welcome step, but there are still many other opinions that need to be pulled. OLC should commit to periodically revisiting its past work to make sure past abuses are not enshrined in the office’s official decision-making.

One side effect (or perhaps one of the aims) of the secrecy surrounding the memos’ creation was that OLC had to rely solely on the people designing these abusive programs to get the facts about what the programs would do and what their effects would be. In the case of the CIA torture program, that information was highly misleading, and the program involved far worse torture and far fewer supposed safeguards than the memos reflect. Similarly, the Stellar Wind memo contained inaccurate descriptions of the program as it was actually implemented, making its conclusion that the program was legal worthless. And the drone memo notes that its analysis depends on the evidence provided to OLC purporting to show al-Awlaki posed a threat and could not be captured. But those facts remain classified, making it impossible for the public to evaluate the case against al-Awlaki or what an appropriate threshold for such a drastic action would be.

Receiving bad information isn’t an excuse for OLC: Even if the programs had been carried out as described, the memos would have been deeply flawed. But the office’s acceptance of misleading information points to an additional flaw with how OLC continues to operate. The office does not generally challenge or verify the factual assertions it receives from the officials who seek its advice. Circulating draft memos to all stakeholders might identify some of these flawed assertions. But robust reform needs to go farther. A news report suggests that the al-Awlaki memo justifying the drone strike was reviewed by other stakeholders, but the OLC drafters still did not question the CIA’s assertions about the danger al-Awlaki posed. To truly reform OLC’s process, the office must be required to verify and certify the underlying facts before it approves the government’s conduct.

In addition, lawyers at OLC need to be held to a higher ethical standard — one that reflects their duty to the country, not just to the White House. When the Office of Professional Responsibility reviewed the torture memos, it originally found that Yoo and Bybee had committed misconduct by performing one-sided analyses. But that finding was overruled by Justice Department officials, who felt the office had held them to too high a standard. If the current standards are so low, they need to be improved — there are straightforward ways to do that by applying more stringent rules from the legal profession’s ethical canon.

Finally, OLC operates within, and to a large extent created, a legal environment where its opinions become the last word on an issue, without opportunities for other branches of government to weigh in with competing views of the law. That’s why we support bolstering Congress’s ability to create legal analyses that provide a counterweight to OLC’s often one-sided views. This would be most beneficial in areas like congressional oversight of the executive branch, as we’ve written before. But it’s possible to imagine that congressional analysis of the laws it passed in 2005 and 2006 could have tempered OLC’s reapproval of the torture program.

The post-9/11 torture and surveillance programs, and the memos that enabled them, remain some of the most shameful episodes in U.S. history. Drone killings continue apace with virtually zero public or policymaker understanding of their justification. While it is tempting to view the memos that allowed them as an aberration born of a unique moment in time, they illustrate deeper problems with OLC. To ensure these abuses don’t happen again, we must take action to add more guardrails to that powerful office.