President Obama is right. Whatever we do about the sordid acts of torture during the Bush years, it is more important to prevent their recurrence in the future. Unfortunately, the president has yet to take his own words seriously. He seems to think it's enough to appoint better people to the jobs in the White House and Department of Justice formerly held by Alberto Gonzales, Jay Bybee, and John Yoo. But this is a mistake. We need to rethink the entire institutional setup that made their abuses not just possible but predictable.
The torture memos are symptoms of a deeper structural problems in both the White House and the Justice Department. These failures enabled John Yoo, David Addington, and others to rush to their decisions without exposing themselves to the ordinary checks and balances that constrain professional legal judgment. Without fundamental changes, the same politicizing dynamic may well repeat itself after the next terrorist attack.
Begin with the Office of the White House Counsel, a team of high-powered lawyers selected for their loyalty to the president. Working out of the political hothouse of the West Wing, the person serving as White House counsel will require remarkable backbone to resist pressure to rubber-stamp legally problematic aspects of the president's policies. Gregory Craig, the current choice, may well possess the requisite integrity. But if Craig succeeds in restoring the office tarnished by Alberto Gonzales and Harriet Miers, he will paradoxically create the conditions for another wave of illegality. The White House counsel appointed by the next president could use the prestige Craig has accumulated to issue opinions that will serve as get-out-of-jail-free cards for future illegal acts.
That's why the Office of White House Counsel—a relatively recent creation—should be abolished. Obama should return to the traditional system in which presidents depended on the Justice Department for their legal advice. The White House counsel dates only to 1943, when Sam Rosenman became the first to have the title—and he was President Roosevelt's principal speechwriter, not a legal adviser. Succeeding presidents followed FDR's model. Before Richard Nixon was faced with impeachment and then-Counsel John Dean hired five assistants, the White House counsel didn't even have a staff.
The next stage in the counsel's rise to power came in Jimmy Carter's administration, with the appointment of Lloyd Cutler. As perhaps the leading Washington lawyer of his generation, Cutler began publicly pronouncing on a broad range of legal and constitutional matters. Cutler was no empire builder—his staff was no bigger than Dean's. But by greatly enhancing the reputation of the counsel's office, he paradoxically set the stage for its later downfall under Gonzales and Miers. Under the Bush administration, the office doubled in size from 10 to 20 lawyers. Craig, for his part, has already hired about 25 leading academics and elite professionals—creating an institutional powerhouse that may run off the rails in some future emergency. The time to rethink this dynamic is now.
The Office of Legal Counsel in the Justice Department also has roots in the Roosevelt era. The proliferation of New Deal statutes created a crisis of legal interpretation in the executive branch, with different departments and agencies interpreting the same statutes in different ways. This cacophony required the Justice Department to play a coordinating role. It borrowed an assistant from the solicitor general's office, and that assistant began issuing opinions to resolve legal conflicts. The current Office of Legal Counsel evolved from these humble beginnings and continues to show signs of its origins. For example, the OLC isn't organized as if it were a court that must hear both sides of the argument before reaching its opinion on the merits. Instead, the assistant attorney general in charge of the OLC acts as if he were an advocate and issues opinions without the checks and balances provided by adversary argument.
This one-sided culture helped create the excesses of Bush OLC lawyers Jay Bybee and John Yoo. Since they were the president's lawyers, it was easy for them to suppose that they should fulfill their client's demands. The challenge for Dawn Johnsen, Obama's nominee to head the Office of Legal Counsel, is to transform her office into a truly judicial institution.
It's this function that served as the initial aspiration for the office during the 1940s, when it was called the "Executive Adjudications Division." Wonky, but "adjudications" gets at the idea of balance. But in the 1950s, President Eisenhower changed the name, thereby encouraging officials to think of themselves as the president's lawyers, rather than as a quasi-independent, courtlike body charged with telling the president how he should discharge his constitutional obligation "to take care that the laws be faithfully executed."
We should return to the earlier vision. President Obama should reverse Eisenhower's executive order. He should transform the Office of Legal Counsel into a courtlike institution that will make every effort to interpret the law in an impartial fashion. Before reaching an opinion on the merits, this new tribunal should confront briefs and oral arguments that force it to consider soberly the hard questions. On important matters, the tribunal should sit in multimember panels. And panel members should feel free to write dissenting opinions if they believe that the majority has gone astray.
Institutional redesign is no panacea. A sufficiently determined president might well overwhelm the new executive tribunal I've sketched if he tried hard enough. But our entire constitutional tradition teaches that we should build the best institutions we can and take heed of Madison's caution, in The Federalist, that "enlightened statesmen will not always be at the helm."
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