If the President makes decisions by default on national security, the President’s only judges are the lawyers who provide the President with advice. Because of threshold doctrines such as standing and political questions, courts often do not encounter the most difficult and important questions. Moreover, the President and Congress often develop a course of dealing over time that settles the distribution of power between them. By standing in for courts and interpreting both case law and the political branches’ course of dealing, few lawyers practice with higher stakes than those at the Justice Department’s elite Office of Legal Counsel (OLC). However, because of the stilted advice of OLC staffers in the eighteen months after the September 11 attacks, few lawyers have received as much criticism.
A broad consensus has developed that the lawyers who provided President Bush with legal advice in the aftermath of September 11 did not adequately consider the special responsibilities they had assumed. In authorizing coercive interrogation techniques and a broad program of warrantless surveillance without securing congressional approval, these lawyers allowed the President to operate with minimal accountability and set the stage for a pushback from Congress, the courts, and global public opinion. Although more conscientious Bush Administration lawyers withdrew some of the more sweeping memos after the initial period and the Obama Administration has repudiated the rest, the question of who controls legal advice to the President continues to spur controversy. Commentators debate the appropriateness of sanctions for OLC lawyers and the design and substantive mandate of OLC.