Office of Legal Counsel

Template:TOC-right Within the U.S. Department of Justice, the Office of Legal Counsel, headed by an Assistant Attorney General, provides legal advice to other agencies of the Executive Branch, as well as to organizations within the Justice Department itself. It reviews all proposed orders either issued by the Attorney General or approved by the Attorney General.

It responds to requests for legal opinions from agencies including the Counsel to the President, which "typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality."

Structure and functions

It is a small office, currently with 24 staff attorneys under an Assistant Attorney General, a Principal Deputy Assistant Attorney General, and four Deputy Assistant Attorneys General.

Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of executive departments. The Attorney General has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of his function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Department of Justice.

Current status

President Barack Obama, on January 5, 2009, nominated Dawn Johnsen as his choice for Assistant Attorney General to head OLC. The Senate Judiciary Committee held hearings on February 25, and voted, 11-7, to send her nomination to the full Senate. Sen. Arlen Specter (R-PA) did not vote, saying he wanted to meet with Johnsen to discuss her positions on abortion.

The vote was along party lines, and the Senate debate is expected to be controversial.

Johnsen, now a constitutional law professor at Indiana University, formerly served as legal director for the National Abortion and Reproductive Rights Action League (NARAL), renamed NARAL Pro-Choice America. he has strongly criticized the Bush administration’s OLC legal memorandums and positions on executive power. During her nomination hearing, she explicitly called waterboarding a method of torture when asked by Sen. Dianne Feinstein (D-CA)

George W. Bush Administration

In the George W. Bush Administration, the Office of Legal Counsel was under Jay Bybee from 2001 to 2003. OLC produced the key legal opinions that framed the intelligence interrogation and extrajudicial detention positions under the war on terror framework.

After Bybee left, Jack Goldsmith served from 2003 to 2004. Two deputies under Bybee served in acting roles for the remainder of the Administration: Daniel Levin from 2004-2005, and Steven Bradbury from 2005-2007.

Goldsmith is now a professor at Harvard Law School. Prior to coming to the Justice Department, he had been a legal adviser to the general counsel of the U.S. Department of Defense, William J. "Jim" Haynes II. He sent a memo to Defense Secretary Donald Rumsfeld, suggesting that the International Criminal Court might indict American officials for their actions in the war on terror. Goldsmith described this threat as “the judicialization of international politics.” He resigned nine months later, and, according to the New York Times, "had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies" endorsed by OLC attorneys including John Yoo. "Goldsmith considered these opinions, now known as the “torture memos,” to be tendentious, overly broad and legally flawed, and he fought to change them. He also found himself challenging the White House on a variety of other issues, ranging from surveillance to the trial of suspected terrorists." He believed he brought the Administration more into conformance with law, but "'I was disgusted with the whole process and fed up and exhausted'" Goldsmith published a book entitled The Terror Presidency.

The core opinions sent to the White House and Defense Department were signed by Bybee, although additional opinions, later released, Bradbury authored three of the legal opinions about interrogation sent to the CIA, released on April 16, 2009.

Bradbury was nominated for Assistant Attorney General in June 2005, and was approved by the Senate Judiciary Committee, but the nomination never came before the full Senate. Before the Obama Administration took office, the Justice Department rescinded a number of the main legal opinions.