The Senate Judiciary Committee Thursday voted in favor of authorizing subpoenas to obtain a wide-range of documents from the Department of Justice’s Office of Legal Counsel (OLC) involving the agency’s legal advice to the White House on issues such as interrogation tactics and domestic surveillance.

“During this administration, OLC has been misused to provide legal justifications for misguided policies,” Senate Judiciary Chairman Patrick Leahy said Thursday. “That advice has been deeply flawed, sloppy, and flat out wrong – but it has been permitted to happen because secrecy has prevented our oversight.

“Unjustified secrecy continues to prevent the review by this Committee that would provide a check and some control on how the administration is interpreting the law that is Congress’s constitutional responsibility to write. That obsessive secrecy even prevents us from knowing the subject matter on which OLC has written opinions.”

The 10-9 party line vote means Leahy, D-Vt., can issue subpoenas any time even when Congress is out of session. However, Leahy’s office said the senator would first consult with Judiciary Committee members before he subpoenas any documents.

Leahy said Thursday that despite the committee’s “best efforts” the OLC’s work “has largely been kept secret.”

“For the last eight years, the Bush-Cheney administration has been having the Office of Legal Counsel (OLC) write secret laws by creating interpretations of the laws Congress has passed,” Leahy said. “There is no justification for keeping OLC legal interpretations secret from this Committee, let alone the index I have long sought. I seek this authorization after years of being rebuffed and slow-rolled in our attempts to find out how this administration has interpreted and applied the laws written by Congress.”
 
Sen. Dianne Feinstein, D-Calif., who voted in favor of authorizing Leahy to subpoena OLC documents, said, “deep, dark mistakes – and I put that charitably – have been made, and it is this committee’s obligation to see that they never happen again.”

The OLC was an obscure division of the Justice Department until one of its attorneys, John Yoo, drafted legal opinions that virtually gave President Bush unilateral authority to launch preemptive military strikes against any regime suspected of having ties to terrorist groups, provided Bush with the power to begin a covert domestic surveillance program, and authorized the president to allow CIA agents to interrogate alleged terrorist detainees using brutal methods of interrogation as long as it didn’t result in death or maiming of the prisoner.

Furthermore, as Yoo advanced his argument for virtually unfettered presidential war-time powers regarding the treatment of prisoners, the memo also pointed to other still-secret documents suggesting the administration was prepared to take its authority even further, into domestic military operations that would brush aside constitutional protections.

Yoo footnoted one of his earlier memos, dated Oct. 23, 2001, and entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” According to the footnote, that memo “concluded that the Fourth Amendment had no application to domestic military operations.”

The memo – with its provocative title – has remained a closely held administration secret, kept even from the House Judiciary Committee which renewed its request for the document on Thursday.

It’s now clear, however, that from inside the Justice Department’s Office of Legal Counsel, Yoo and his colleagues were churning out a series of memos that fit with President George W. Bush’s desire to be “forward-leaning” – or extremely aggressive – in the wake of the 9/11 attacks.

Though the Oct. 23, 2001, memo is still secret, some of Yoo’s thinking on domestic military operations was revealed in an even earlier memo, written 10 days after the 9/11 attacks, on Sept. 21, 2001.

In that memo, Yoo cited hypothetical cases in which U.S. military action against suspected terrorists on U.S. territory – such as a raid against a hideout or use of military checkpoints – might endanger Americans or intrude on their constitutional rights.

Yoo argued that President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. … We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.”

The Fourth Amendment to the U.S. Constitution states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”

But Yoo’s Sept. 21, 2001, memo argued that the “war on terror” could justify domestic surveillance activities, such as monitoring telephone calls without a court warrant, that otherwise might violate the Fourth Amendment.

In his 2006 book, War by Other Means: An Insider’s Account of the War on Terror, Yoo cites various arguments for local and federal law enforcement agencies, as well as a sitting U.S. President, to ignore the Fourth Amendment, especially regarding domestic surveillance.

“If al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement,” Yoo wrote. “The Fourth Amendment’s warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks.”

In February the Justice Department’s Office of Professional Responsibility (OPR) launched a formal investigation to determine Yoo and other attorneys at the OLC provided the White House with poor legal advice.

H. Marshall Jarrett, the head of OPR, said his office planned on questioning Yoo, and his former boss, Jay Bybee, who signed the former head of OLC, now a federal appeals court judge in San Francisco.

“Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” Jarrett’s said in a letter sent in February to Sen. Dick Durbin, D-Ill., who called for the probe.

Durbin had asked Jarrett to investigate how Yoo and others in the OLC formed the legal basis for waterboarding-or simulated drowning, outlawed since the Spanish Inquisition-and whether DOJ standards and policies were met when OLC reached it’s conclusions on the technique.

“Did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? For example, did these officials consider all relevant legal precedents, including those that appear to contradict directly their conclusion that waterboarding is lawful?” stated Durbin’s Feb. 12 letter to the DOJ.

In 2002, Yoo was the principal author of two legal opinions, widely referred to as “torture memos,” authorizing CIA and military interrogators to use long outlawed interrogation techniques against suspected terrorists detained in the so-called war on terror.

Yoo, who left the OLC in 2003 and is now a law professor at the UC Berkeley, based his legal opinion on torture on a 2000 health benefits statute in defining torture. Yoo’s legal opinion stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” than the interrogation technique could not be defined as torture.

Leahy and other Democratic lawmakers have asked the DOJ to voluntarily turn over documents to his committee related to OLC’s legal analysis, but Attorney General Michael Mukasey, and his predecessor Alberto Gonzales, have refused to turn over some of the more controversial documents to Congress. A majority of the documents that have been released thus far that detail the inner workings of the agency have been released by the American Civil Liberties Union in response to Freedom of Information Act requests.

Jack Goldsmith, the former head of OLC, who wrote a book about his tenure at the department called “The Terror Presidency”, disclosed additional details about the OLC’s work.

Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks on the job that Yoo’s “torture memo” was “legally flawed,” sloppily written, and called into question whether the White House was provided with sound legal advice, according to his book.

Goldsmith claims that after reviewing various arguments and opinions in Yoo’s August 2002 “torture memo,” particularly “any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.”

Leahy said Thursday that he had been actively trying to negotiate an agreement with White House Counsel Fred Fielding to obtain OLC documents without having to resort to subpoenas.

“I can report that despite my willingness to meet, the President’s counsel has shown no interest in meeting or resolving this matter,” Leahy said, adding that his Republican colleagues have tried to delay a vote on the authorization to issue subpoenas. “In fact, in his most recent letter response to me he bucked the issue back to the Department of Justice – even though we all know it is the White House that is calling the shots,” Leahy said. “Their saying that they will “get back to us” after five years of stonewalling, and as the sun sets on this administration is hardly a reason to delay further.”