Update: I find the following post a bit embarassing. Turns out that I am outraged by the same announcement that Glenn Greenwald applauds. Obviously the part on which I comment is not news. I do think that my interpretation of the idea that people in the executive branch sould be able to rely on the OLC is the only one which makes sense. However, the OLC is not new and the idea that it can give out pre-emptive pardons isn't either.
The ranting post follows.
I consider the phrase "relying in good faith on opinions of the justice department" to imply the utter rejection of the rule of law. If employees of the executive can "rely" on something written by one of the President's subordinates, then the President has absolute power. In repeating this argument, I think the Obama administration has joined the Bush administration's effort to destroy limited government and the rule of law.
I am enraged by their statement of their decision to release the three still secret torture memos which includes "In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."
It might be best not to prosecute or even investigate. However, the statement "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." is totally unnacceptable. The Obama administration has now declared that opinions of the OLC ought to determine whether or not there is an investigation *even* if the OLC wrote them in bad faith. This gives OLC opinions the force of law.
If employees of the executive can "rely ... on opinions from the Departement of Justice" then the executive is supreme and can brush the constitution, the law and supreme court opinions aside by pretending to interpret them as saying what the supreme executive wants them to say. the deleted qualifier "in good faith" does not imply that the Justice Department must write its honest opinions in good faith. It refers only to the "good faith" of the subordinates who follow orders.
Obama is making opinions public, but does not commit to making all future opinions public (and couldn't bind a future President anyway). In fact, the explanation of why the 3 memos are being public makes it clear that it is definitely not Obama administration policy to make future OLC opinions public.
Thus we have a body subordinate to the President with the power to arbitrarily rewrite the law. This is not bipartisan consensus policy. Thus Obama has decided to attempt to eliminate the rule of law and the principle of divided government and checks and balances. He might not succeed, but I don't see why not.
If actions taken in good faith following OLC opinions are not to be prosecuted (good faith by the actors not the OLC) then there is nothing left. In particular the Supreme Court is no help. If the OLC can rewrite the constitution and the laws, then it can rewrite supreme court opinions. Supreme court decisions are important because they establish precedents, not because of the resolution of the particular case. The OLC can make a plainly dishonest secret interpretation of Supreme Court precedent. If no one can be punished for acts which the OLC dishonestly claims are constitutional, legal and consistent with Supreme Court precedent, then we are not protected by the Constitution, the law or the Supreme Court.
There was no need for Obama to abandon the constitution and the idea of constitutionalism. He could just have ordered his subordinates to not investigate or prosecute without appealing to the OLC. the English legal tradition includes prosecutorial discretion and the barrier between the President and career prosecutors at DOJ is a tradition, not a requirement of the constitution. By arguing that OLC opinions, no matter how clearly written in bad faith, are decisive, Obama decided that the law must bow to the power of the OLC which is subordinate to the President. I'm actually not worried about what he will do with his recently claimed absolute power. However, if there is a bipartisan consensus that the executive can't be punished for breaking the law, his successors will have absolute power too. I think that the political advantage of publicly promising not to investigate Bush administration crimes does not justify the destruction of the constitution and the rule of law.
