A Call for Institutional Reform of the Office of Legal Counsel
Harvard Law & Policy Review, Vol. 4, p. 249, 2010
14 Pages Posted: 1 Mar 2010 Last revised: 7 Mar 2010
Date Written: February 23, 2010
The Office of Legal Counsel (OLC) is extraordinarily powerful, standing as the legal arbiter of what the executive branch can and cannot do. Yet during the administration of George W. Bush, the office sanctioned legally unsound policies. This Essay explains what went wrong in the Office of Legal Counsel during the Bush Administration and suggests institutional reform to prevent such problems in the future. I begin by showing how OLC’s conduct violated widely held norms within the legal community. Though many observers have focused on OLC’s actions authorizing torture, this Essay contends that the office’s role permitting warrantless wiretapping within the United States was a unique violation of lawyerly values. The Essay then analyzes the source of the problems within OLC. I argue that the structure of OLC has lent itself to being particularly political. To remedy the situation, OLC should be restructured to attract a corps of less partisan attorneys who remain at the office for a longer period of time.
Keywords: OLC, Office of Legal Counsel, Civil Service Reform, Torture, Surveillance, Department of Justice, Solicitor General
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