DOJ OLC Error

The Attorney General says he will not prosecute anyone who relied on DOJ OLC conclusions. This assertion is reckless. The Attorney General is making an excuse not to enforce the laws of war, the Geneva Conventions and Nuremberg precedents

Professor John F. Duffy, George Washington University Law School, discovered evidence the DOJ AG assertion of DOJ OLC infallibility is flawed. Duffy discovered DOJ OLC approved an unconstitutional appointment process, potentially invalidating 46 court appointments to the Patent Court.

DOJ OLC approved an unconstitutional patent court appointment process. The DOJ OLC failed to ensure the appointments fully complied with the Supreme Law. This failure should make it abundantly clear to DOJ AG that DOJ OLC opinions are subservient to the Constitution; and DOJ OLC opinions cannot unilaterally rewrite the Constitution, Supreme Law, Geneva Conventions, or FISA requirements.

There is firmly established reasonable doubt about the legality of DOJ OLC legal opinions. These lessons must be applied to how the Attorney General plans to enforce or not enforce the laws of war against those who relied on frivolous DOJ OLC legal memoranda in re prisoner abuse, Geneva responsibilities, and war crimes.

Continued DOJ AG refusal to enforce the laws of war -- and blindly rely on DOJ OLC memoranda to block prosecutions for war crimes and FISA violations -- could be a subsequent war crime under the Nuremberg precedents.

This note comments on the implications of the flawed DOJ OLC legal opinion in re the 46 patent judges in re Geneva; and the AG decision not to enforce the laws of war against those relying on the DOJ OLC memoranda. Professor Duffy’s findings cast to the wind the AG’s (invalid) excuses for not enforcing Geneva, power abuse, or war crimes.

AG Flawed Legal Position

The Attorney General repeatedly said he will not second guess DOJ OLC, and he will not prosecute anyone who relied on DOJ OLC memoranda.

However, once it is proven DOJ OLC issued reckless, frivolous memoranda in re POW abuse and war crimes, legal counsel could be attached to the subsequent war crimes relying on those memoranda.

DOJ OLC Bungled Patent Judge Appointments

George Washington University Law School John F. Duffy discovered a DOJ OLC error. Professor Duffy could not find any Constitutional authority for 46 patent attorney appointments.

The Attorney General has been given evidence of the DOJ OLC error on patent judges. The Constitution is clear. One reason the 46 patent judges appointments are in question is the Constitution trumps both the agency appointment process and the DOJ OLC legal review and conclusion.

DOJ OLC was responsible for conducting the constitutional review of the legislation, and Constitutionality of the patent court appointments. DOJ OLC made an error. DOJ OLC legal counsel failed to meet the high standards AG Mukasey would have us believe are above scrutiny.

This error should make it abundantly clear to all Americans that the Attorney General has given undue deference to the DOJ OLC legal opinions. They do not trump the Constitution or Supreme Law.

End of DOJ OLC Infallibility

DOJ OLC cannot legalize war crimes, FISA violations, or unconstitutional patent court appointments. DOJ OLC cannot legalize what the Supreme Law prohibits, does not allow; and DOJ OLC and the AG cannot, without getting a warrant, authorize violations of the Supreme Law. DOJ OLC cannot make up new rules, or ignore the Supreme Law. The courts and Congress have no power to approve unconstitutional conduct. Congressional silence on DOJ OLC illegal memoranda does not legalize the offensive conduct.

It is irresponsible for the Attorney General to say he will not enforce Geneva or FISA against anyone who relied on DOJ OLC legal memoranda. DOJ OLC conclusions are opinions, are not controlling law, and do not trump the Constitution or Supreme Law.

DOJ OLC Memos Are Not Absolute Legal Foundations

There are many sweeping implications of the defective DOJ OLC legal review of the unconstitutional patent court appointments. DOJ OLC opinions are subject to judicial review.

The Attorney General cannot credibly assert that all things DOJ OLC does or does not do are necessarily authorized or consistent with the Constitution or Supreme Law.

The Attorney General cannot argue the DOJ OLC does not make mistakes, or that their legal opinions are not defective.

The Attorney General cannot credibly argue that DOJ OLC opinions are controlling law.

The Attorney General cannot credibly argue that DOJ OLC opinions, conclusions, ore determinations are final.

These 46 judicial appointments may be invalidated. Conversely, if the DOJ OLC legal conclusions were final, there would be no question whether the unconstitutional question was or wasn’t settled. However, the 46 patent court appointments remain unsettled because the Constitution is very specific about judicial appointments. The process DOJ OLC approved was unconstitutional.

One reason the judicial appointments of 46 court appointments might be invalided is because the DOJ OLC legal counsel’s opinion cannot change the Constitution. The Constitution delegates no power to any under secretary to appoint judges. DOJ OLC legal opinions do not trump the Constitution or Supreme Law.

There is evidence the DOJ OLC legal opinion did miss something, and failed to ensure that the Constitutional requirements were fully respected. The Attorney General has been confronted with evidence that DOJ OLC memoranda are in error, cannot be blindly relied on, and that DOJ OLC memoranda cannot trump the Constitution or Geneva Conventions.

DOJ OLC and Geneva

DOJ AG has a weak legal position arguing he will not enforce Geneva. It is reckless for the Attorney General to say he will not enforce Geneva, or he will block prosecutions against those who relied on the illegal, unreliable, and frivolous DOJ OLC legal memoranda. 46 Judicial appointments are at risk because DOJ OLC legal memoranda and conclusions must be scrutinized.

These appointments are in question because the DOJ OLC opinion is not final, and did not end the debate. Similarly, the AG would be reckless in relying on DOJ OLC memoranda in blocking prosecutions of the laws of war, or for prosecuting anyone who unreasonably relied on these defective DOJ OLC memoranda.

No one can reasonably rely on defective DOJ OLC legal memoranda to implement war crimes, violate the FISA requirements, or make unconstitutional court appointments.

It is irresponsible for the AG to continue to say he will not enforce Geneva or FISA violations against anyone who relied on DOJ OLC legal memoranda. The telecoms, POW interrogators, CIA, and DOD contractors have legal counsel. They should have reviewed the requested assistance. Rather than conduct independent reviews like Qwest and refuse to cooperate with illegal activity, some telecom and government general counsel allegedly agreed to support illegal activity.

Going Forward

The DOJ OLC error potentially invalidates 46 of 74 Patent Judge Appointments.

This DOJ AG must invalidate other DOJ OLC legal memoranda that illegally authorize prisoner abuse, war crimes, Geneva violations, or other Constitutional conduct.

Given these defective DOJ OLC legal memoranda, the Attorney General must explain in writing to Congress and public why he will not enforce Geneva or FISA violations against anyone who relied on these DOJ OLC memos.

The AG must accept the DOJ OLC errors, and clear the way for prosecutions of US government officials, contractors, and military personnel who unreasonably relied on DOJ OLC memoranda to commit war crimes, POW abuse, and FISA violations.

More Information

In One Flaw, Questions On Validity Of 46 Judges, New York Times, May 6, 2008, ADAM LIPTAK