Constitutional Law

Bush Should Share Sensitive Legal Memos With Transition Team, Professors Say

William P. Marshall, professor of law at UNC School of Law and ACS Board member, and Jack Beermann, professor of law at Boston University, blast the Bush administration for withholding legal memoranda from President-elect Barack Obama’s transition team. Marshall and Beermann note in a column for The News & Observer that Attorney General Michael Mukasey has said that the Department of Justice would not share with the Obama transition team binding legal memos issued from the Department’s Office of Legal Counsel. The OLC, Marshall and Beermann write, “sets forth the legal bases and boundaries for the exercise of the executive branch authority, including informing the president as to his rights and powers in the areas of national security and counterterrorism.”

Marshall and Beermann write:

OLC opinions, accordingly, include information that a president-elect must know before he takes office so that he is fully prepared to consider and exercise all of his options from the precise minute he takes power. An outgoing administration’s decision not to provide this information, however, forces the new president to learn the rules of the game only after he takes the field.

This is not only a disservice to the new president, but threatens national security by placing the incoming administration at considerable disadvantage in readying for, and responding to, the imminent and serious threats facing the nation.

The entire column, “Justifications shaky for keeping info from Obama,” is available here.

For further analysis of the OLC during Bush’s tenor, see ACS Board Member Dawn E. Johnsen’s article on the office’s controversial legal memoranda authorizing counterterrorism methods. All the President’s Lawyers: How to Avoid Another ‘Torture Opinion’ Debacle,’ is part of a broad ACS package of proposals and ideas for the forthcoming administration. Johnsen, a professor of law at the Indiana University School of Law, writes in her article that the OLC authorized “a host of controversial counterterrorism actions that threaten civil liberties and at times even the physical safety of those targeted: extreme interrogation techniques and even torture, enemy combatant designations, extraordinary renditions, secret overseas prisons and warrantless domestic surveillance.”

Full post as published by ACS Blog on December 16, 2008 (boomark / email).