Thursday, December 18, 2008

Marshall and Beermann: Give Obama Access to OLC Memos

Professor William Marshall (UNC) and Professor Jack Beerman (BU) published an editorial earlier this week in the News & Observer (North Carolina) criticizing AG Michael Mukasey's refusal to turn over certain OLC memorandums to the Obama team.

According to Marshall and Beerman, Mukasey refused to turn over the memos because transition team members are not part of the government and because other agencies have an interest in some OLC memos. 

As Marshall and Beerman point out, these are clearly bogus reasons.  The former reason is simply wrong: "being an existing member of the government is not a precondition for review of classified materials."  And the latter reason undermines the new administration's ability to transition all agencies.  Marshall and Beerman:

The fact that another agency may have some interest in the matter does not mean the relevant documents should be shielded from a new administration--which needs to know the contents of the memoranda, regardless of outside agency inerests.  And Mukasey's answer seems to forget that the transition applies to all agencies.  Even if the Defense Department, for example, has some interest in an OLC memorandum, so does the new administration for whom the document may be critical for assuring preparedness at both OLC and Defense.

(I'd add that this justification is plainly inconsistent with the Bush administration's own incessant reliance on the unitary executive theory by arguing that agency interests are severable with respect to the incoming administration.)   

The authors argue that the present administration's refusal to share the OLC memorandums violates the President's oath and the Take Care Clause.  Read the full editorial here.

SDS

http://lawprofessors.typepad.com/conlaw/2008/12/marshall-and-be.html

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