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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsFOIA RELEASE: John Yoo OLC Memo, on President's authority to withhold info from Congress
OLC: President May Withhold WMD Info from CongressPosted on Aug.26, 2015 in Congress, Intelligence, WMD by Steven Aftergood
Despite an explicit statutory requirement to keep Congress fully and currently informed about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.
The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.
The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees fully and currently informed of all intelligence activities. It then concludes that those statutes cannot override, modify or limit the Presidents constitutional prerogatives.
Despite Congresss extensive powers under the Constitution, its authorities to legislative (sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the Presidents authority over foreign affairs and national security, the OLC opinion said.
Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.
* Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions. But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the Presidents comments there have no bearing on WMD proliferation or congressional reporting requirements.
* Yoo uses the word disclosure throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels could harm the national security if the information never became public.
* Yoo does not acknowledge or mention the Supreme Courts 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the Presidents freedom of action.
* Yoo does allow that the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security. But this is incoherent, even by Yoos own lights, since whenever disclosure is consistent with national security, the Presidents authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.
* Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions. But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the Presidents comments there have no bearing on WMD proliferation or congressional reporting requirements.
* Yoo uses the word disclosure throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels could harm the national security if the information never became public.
* Yoo does not acknowledge or mention the Supreme Courts 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the Presidents freedom of action.
* Yoo does allow that the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security. But this is incoherent, even by Yoos own lights, since whenever disclosure is consistent with national security, the Presidents authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.
http://fas.org/irp/agency/doj/olc/nsi.pdf
http://fas.org/blogs/secrecy/2015/08/olc-nsi/
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FOIA RELEASE: John Yoo OLC Memo, on President's authority to withhold info from Congress (Original Post)
kpete
Aug 2015
OP
Damn. If I had a child going to UC Berkley, I would have them pull out, until they fired Yoo.
madinmaryland
Aug 2015
#5
hifiguy
(33,688 posts)1. Yoo should be disbarred and jailed,
and in a truly just world would have been at the end of a rope in the Hague some years ago.
BillZBubb
(10,650 posts)2. Yoo is an authoritarian fanboy. He loves him some unitary executive.
Tyrannies always have useful stooges like Yoo. How could that clown still be practicing law?
hifiguy
(33,688 posts)4. He's not practicing,
he is TEACHING, at UC Berkeley IIRC.
I guess Roland Friesler isn't available anymore, so they had to tap Yoo. https://en.wikipedia.org/wiki/Roland_Freisler
madinmaryland
(64,933 posts)5. Damn. If I had a child going to UC Berkley, I would have them pull out, until they fired Yoo.
What a fucking POS.
hifiguy
(33,688 posts)6. He's at the LAW SCHOOL.
Which is outrageousness cubed.
bobthedrummer
(26,083 posts)7. Yoo is a major un indicted US TORTURE as POLICY criminal. n/t