Urge Your Senators to Support the OLC Reporting Act

One of the important undone legislative tasks of 2008 is the attempt to bring the White House back under the control of the Constitution and federal law. The CEOs from Detroit might not see things this way, but for the rest of us, ensuring that the President and his aides are not above the law is much more important than providing General Motors, Chrysler and Ford with billions of dollars of public money.

S. 3501, the OLC Reporting Act of 2008, would have taken a significant step toward restoring the accountability of the Executive Branch. The OLC in the title of this bill stands for Office of Legal Counsel. The Office of Legal Counsel is the entity that advises the President on the legality of proposed legal actions. Under George W. Bush, the Office of Legal Counsel became an entity that provided justifications for the violation of the law.

Current Attorney General Michael Mukasey has stated that he will not initiate any criminal investigation into the involvement of any members of the Bush Administration in the administration of torture, even though that involvement is clearly against the law. Mukasey’s justification: The Office of Legal Counsel wrote memos claiming that certain acts of torture are legal, and therefore, involvement in those acts of torture cannot be prosecuted. This declaration establishes the claim that the White House, through the Office of Legal Counsel, has the power to override the law as written by Congress and interpreted by the Judicial Branch. In other words, the precedent established under the Bush Administration is that the President has the power to place himself above the law when he deems it necessary.

Furthermore, the precedent has been set for the President to use the Office of Legal Counsel to overrule the law in secret. Those torture memos Michael Mukasey cited as reason that the President and his aides are immune from prosecution were written in secret. The public was never informed, and neither was Congress, until the existence of the memos was leaked by a whistleblower this year.

S. 3501, the OLC Reporting Act of 2008, would take the small but important step of requiring that the Office of Legal Counsel make a report to Congress when it issues an opinion to the President that he does not need to obey a law. The idea of the law, introduced by Russ Feingold, is that, if Congress knows that the President is using his legal staff to justify the defiance of the law using particular legal arguments, Congress can then write legislation specifically intended to end the Office of Legal Counsel’s interpretation.

The committee report on S. 3501 released last week suggests that no argument can be reasonably made against S. 3501. The Congressional Budget Office has analyzed the legislation, and concluded that it would result in no significant increased spending. The Senate Judiciary Committee has concluded, upon its own analysis, that “no significant regulatory impact will result” from the passage of the bill.

Yet, S. 3501 has not passed the Senate.

Some shortsighted Democrats might say that this isn’t really an urgent issue any more, given that George W. Bush is leaving office in a month from now, and Barack Obama will occupy the Oval Office. That conclusion depends, however, upon the belief that it’s acceptable to have a tyrant in control of our nation, so long as that tyrant’s agenda happens to agree with ours.

Barack Obama, upon entering the role of President of the United States, will do so as a tyrant. This isn’t a personal judgment on Obama’s character. It’s a practical fact. The tyrannical powers of the presidency as established under George W. Bush – arbitrary imprisonment, unjust trials, torture, spying on Americans without any real oversight – will not disappear just because Bush himself is gone. Barack Obama is assuming the powers of the Presidency on January 20, and right now, those powers include the powers of a tyrant. That will make President Barack Obama a tyrant.

Does that not matter to Democrats? Is the United States of America really a nation in which people don’t care whether their executive leader is a tyrant, so long as they regard him as a benevolent tyrant? I hope not, but I’m really not sure.

Here’s significant cause for concern: Barack Obama never cosponsored S. 3501. Neither did Hillary Clinton – now to become Secretary of State. Neither did Joseph Biden – now to become Vice President. Three of the top four leaders in the line of succession to the Presidency (including Obama himself) have come from the Senate, where they failed to support efforts to take away the power of the President to overrule federal law. Nancy Pelosi, as Speaker of the House is the fourth in the group in line now to take the Presidency, and she has a similar poor record of standing up for constitutional balance of powers.

Under our Constitution, and the system of laws that it establishes, we aren’t supposed to have to trust our elected leaders to be good people, and to use their powers in accordance with the law. We’re supposed to have assurance that our leaders are acting under the law – assurance through a system of checks and balances between the three branches of federal government. As Barack Obama prepares to take office, that system of checks and balances remains dismantled.

If you actually care about the rule of law in the United States of America, I don’t care whether you’re a Democrat or a Republican, a Green, a Libertarian, or an independent. You need to call your two United States senators and urge them to support the passage of S. 3501, the OLC Reporting Act of 2008.