Protecting the Office of Legal Counsel From Itself

Pardon me if I act like a black sheep at this symposium of Office of Legal Counsel ("OLC") alumni. Like most OLC alumni, I share the genuine affection and respect for the Office and its traditions that this symposium reflects. But at the same time, I cannot fully accept the undertone of self-congratulation that pervades this panel's two principal papers. My discomfort grows from the inordinate amount of time that I have spent over the last few years disagreeing with OLC positions, particularly in three areas of United States foreign policy.

The first concerns the "Iran-Contra" prosecution of Oliver North in the United States District Court for the District of Columbia, in which OLC coauthored a Justice Department brief defending an extraordinarily broad view of executive power in foreign affairs. The second involves OLC's turnabout with regard to the legality of extraterritorial abductions, which culminated last year in the Supreme Court's decision in United States v. Alvarez-Machain, appropriately labeled "monstrous" by the dissent. The third is OLC's recent reversal of position regarding the applicability of United States laws to Haitian refugees interdicted on the high seas, the subject of other litigation in which I have been deeply involved.