Earlier this summer, the Justice Department released to the public a trove of old Office of Legal Counsel memos. My Atlantic colleague Conor Friedersdorf already has discovered them and written about the eternally regrettable OLC memo justifying the ignoble fate of Japanese Americans in 1942 as well as a 1937 memorandum in which an otherwise forgettable administration lawyer (Golden W. Bell) courageously (and correctly!) told President Franklin Roosevelt that he couldn't censor a foreign speech by the ill-fated Leon Trotsky.
Let me now add my voice to Conor's chorus. These memos are pure gold if you like history, or law, or politics, or some combination of the three. Here's how the Justice Department explained what they are and why they seem so relevant today:
Writings of OLC and its predecessors date back to 1933, but OLC did not begin publishing its opinions until January 1977. In this first volume of a new supplemental series, OLC is publishing a number of opinions written between 1933 and 1977. The volume includes at least one opinion from each Assistant Attorney General during that era, and several from former Chief Justice William Rehnquist and current Associate Justice Antonin Scalia.
Many of the opinions address legal issues related to significant historical events, including presidential action during World War II, the blockade of Cuba, U.S. incursions into Cambodia during the Vietnam War, and Watergate. And many involve legal issues that continue to have great relevance today, including appointment and removal of executive branch officers, executive privilege, the use of military force, and presidential control of communications during wartime.
Not only are these memos fascinating on their merits (see below), they also tell us a great deal about the way high officials spoke the language of the law back in the day -- and how that language has changed over the generations. The older memos tend to be shorter and much more succinct. The later memos tend to be longer -- just like the Supreme Court decisions they occasionally generated. Here are my five favorites (in no particular order) of true '"first drafts of history":
1. Use of Marshals, Troops and Other Federal Personnel for Law Enforcement in Mississippi (July 1, 1964)
Here one of the unsung heroes of the civil rights movement -- Nicholas Katzenbach, in his capacity as deputy attorney general -- is giving President Johnson cogent advice about the "practical" problems inherent in sending federal troops to the Deep South in the heat of the fight against racial segregation. Send in the FBI, Katzenbach argues, but don't send in the troops. Much of what Katzenbach told the White House -- and, remember, this was nearly one year before the August 1965 passage of the Voting Rights Act -- was based upon his first-hand observations of Southern intransigence. The introduction of federal authority into the South could both create and halt chaos -- and the feds knew it. From the memo:
There is another practical problem, however, which is the crux of the matter. The experience of the Department in the Oxford, Mississippi, crisis and in the several disturbances in Alabama convinced all those who participated that the most crucial factor in maintaining law and order in a community gripped by racial crisis is the support of state and local law enforcement officers. If they are clearly determined to support law and order, the prospects of violence are considerably reduced. If they encourage violence or abdicate responsibility for law enforcement functions, violence on a substantial scale is virtually certain to occur and the possibility of maintaining order by any means short of the use of federal troops becomes negligible.
Once local law enforcement ceases to function in any sizable area, the number of personnel required to maintain control without the actual use of weapons exceeds the manpower resources of every branch of the federal service except the military. It is essential, therefore, to encourage state and local law enforcement agencies to carry out their responsibilities and, if at all possible, to avoid using federal personnel in such a way so as to provide an excuse for abandonment of responsibility by such agencies. If marshals or agents of the Bureau are used in any obvious way as guards in Mississippi, without the active support and cooperation of local officials, local law enforcement will tend to break down.
This is not merely because local officials resent the intervention of outsiders, although that is an obvious factor. The fact is that in Mississippi the use of federal law enforcement personnel, particularly marshals, is regarded by the public as provocative and might well give rise to more breaches of the peace than would otherwise occur. Particularly if the civil rights workers involved engage in demonstrations and other mass activities while accompanied by marshals, their function will soon cease to be one of preventing clandestine violence and become one of maintaining public order among considerable numbers of people over a large area. In that situation, our experience is that without the support of local officials the maintenance of order requires the use of troops.
2. Presidential Appointment of Justice Robert Jackson to Prosecute Axis War Criminals in Europe (July 2, 1946)
Even before Germany surrendered to the Allies in May 1945, President Harry S. Truman had appointed United States Supreme Court Justice Robert H. Jackson to "act as the representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories." Justice Jackson was an inspired choice for many reasons (and served his nation admirably during the Nuremberg trials) but his appointment initially raised some separation-of-powers concerns. In response, the Justice Department offered this:
It is hardly necessary to call attention to the fact that the undertaking involved-- the indictment, prosecution, and trial of the chief war criminals in Europe-- is of supreme importance to the whole civilized world. Nor is it necessary to point out that this grave undertaking is unique in the history of judicial procedure. It was, therefore, of the utmost importance that the Chief of Counsel for the United States be an exceedingly able man, of wide experience, of exceptional physical vigor, of peculiar aptitude for the task, and of great legal attainments. It was equally important that the President of the United States should be entirely free to select that citizen of the United States who he felt was best qualified to perform the duties of this office.
It must be conceded that Mr. Justice Jackson is eminently qualified to discharge the duties and responsibilities of the task assigned him. His record of accomplishment as Chief Prosecutor for the United States in the trial of war criminals now being conducted at Nuremburg (sic) speaks for itself. His record in this respect is, in fact, a complete justification of his appointment. The appointment of Justice Jackson for this special mission is not only without legal objection, but it is also supported by ample precedent. It is a well established practice for the President to secure the services of federal judges in connection with important national and international matters.
This practice arose long ago. It is well illustrated by the following examples: Chief Justice Jay served as special envoy to England at the request of the President. Chief Justice Ellsworth served as special envoy to France. Chief Justice Fuller twice acted as an arbitrator of international disputes. Circuit Judge Putnam served as a commissioner under a conference with Great Britain relating to the seizure of vessels in the Bering Sea. More recently, Justice Roberts served as chairman of the board appointed by President Roosevelt to investigate the Pearl Harbor disaster of December 7, 1941.
3. Presidential Authority to Permit Incursion Into Communist Sanctuaries in the Cambodia-Vietnam Border Area (May 14, 1970)
As the stated legal (and political) justification for one of President Nixon's most controversial foreign policy acts, this memo is fascinating on its merits. It's even more remarkable when you consider that it was written by William Rehnquist, then an assistant attorney general, who just 527 days later would be nominated to the Supreme Court by the president for whom this memo was written. Rehnquist's conclusions in 1970 are particularly interesting in light of his position in one of the last famous cases he would decide as Chief Justice of the United States. In 2004, in Hamdi v. Rumsfeld, he signed on to Justice Sandra Day O'Connor's ruling in which she wrote that war "is not a blank check" for presidential power.
The Rehnquist memo is much longer than most of that era -- 18 pages -- and if the justice later came to regret some of the factual assertions in it, I am not aware of it. In fact, this memo followed him around for the rest of his career, coming up both at his initial Senate confirmation hearing in 1971 and then again upon his ascension to chief justice in 1986. The date of the writing -- May 14, 1970 -- means that it was completed almost exactly one year after The New York Times revealed President Nixon's secret bombing campaign in Cambodia, and only 10 days after the Kent State shootings. From the OLC memo, in which Rehnquist famously asserts that "the United States has in no sense gone to 'war' with Cambodia:"
If substance prevailed over form in establishing the right of the federal government to fight the Civil War in 1861, substance should equally prevail over form in recognizing congressional sanction for the Vietnam conflict by the Gulf of Tonkin resolution, even though it was not in name or by its terms a formal declaration of war. Viewed in this context, the President's determination to authorize incursion into the Cambodian border area by United States forces in order to destroy sanctuaries utilized by the enemy is the sort of tactical decision traditionally confided to the Commander in Chief in the conduct of armed conflict.
From the time of the drafting of the Constitution it has been clear that the Commander in Chief has authority to take prompt action to protect American lives in situations involving hostilities. Faced with a substantial troop commitment to such hostilities made by the previous Chief Executive, and approved by successive Congresses, President Nixon has an obligation as Commander in Chief of the country's armed forces to take what steps he deems necessary to assure their safety in the field. A decision to cross the Cambodian border, with at least the tacit consent of the Cambodian government, in order to destroy sanctuaries being utilized by North Vietnamese in violation of Cambodia's neutrality, is wholly consistent with that obligation. It is a decision made during the course of an armed conflict as to how that conflict shall be conducted, rather than a determination that some new and previously unauthorized military venture shall be undertaken.
By crossing the Cambodian border to attack sanctuaries used by the enemy, the United States has in no sense gone to "war" with Cambodia. United States forces are fighting with or in support of Cambodian troops, and not against them. Whatever protest may have been uttered by the Cambodian government was obviously the most perfunctory, formal sort of declaration. The Cambodian incursion has not resulted in a previously uncommitted nation joining the ranks of our enemies, but instead has enabled us to more effectively deter enemy aggression heretofore conducted from the Cambodian sanctuaries.
4. Authority Under International Law to Take Action if the Soviet Union Establishes Missile Bases in Cuba (August 30, 1962)
This memo answers a question none of us ever likely have asked: What was going on in the Office of Legal Counsel on the night of August 29, 1962? The answer, we now know, is that Kennedy Administration lawyers were hastily preparing a memo in response to U-2 spy plane photographs, taken on August 29, 1962, that for the first time showed surface-to-air missile sites being constructed on the island of Cuba. "In general," the White House lawyers quickly concluded, "it is our view that international law would permit use by the United States of relatively extreme measures, including various forms and degree of force.."
Mind you, this was six weeks before the Cuban Missile Crisis was sprung upon a (largely) unsuspecting world -- and before the Kennedy administration was forced to confront even more direct evidence of Soviet missile work on Cuba. Reading the memo now -- "the statement should acknowledge an obligation on the part of the United States to observe a rule of proportionality" -- it's easy to see in it the seeds of the Kennedy brothers' approach and, ultimately, their solution, to the crisis. But then there are jolting passages like these:
Although it is true that traditional legal concepts of general application do not expressly recognize interests in bloc security, the Monroe Doctrine constitutes an explicit qualification on a regional basis of general legal concepts insofar as the Western Hemisphere is concerned. The history of the Doctrine includes many incidents which emphasize its purpose to prohibit flatly the adherence of territories in the Americas to European or Asiatic power blocs, or for that matter the transfer by them of allegiance from one bloc to another.
The premise underlying this purpose-- that peace and security in the Hemisphere could be assured only by insulating it from the unstable alliances and rivalries of Europe and Asia-- squarely contradicts the balance-of-power policies that infuse the doctrines of general application which are altered by the Doctrine. Moreover, although publicists in the field of international law have not yet formulated concepts and doctrines which expressly recognize the changed world situation, it seems probable that international law, as reflected in the actual practices and expectations of states, already recognizes the decisive importance of bloc security today in certain geographic areas. International law is, after all, essentially a generalized statement in terms of rules and policies of the reasonable expectations of states as derived from their practices in making claims and reacting to the claims of others.
The Western states have, of course, condemned as unlawful the Soviet intervention in Hungary, directed as it was against a revolt which at the time posed a purely political threat against the Soviet Union. It may be doubted, however, whether the United States would have protested seriously the use of force by the Soviet Union if it had been designed for the limited purpose of compelling abandonment of a plan to install Western missile bases in Hungarian territory.
5. Constitutionality of Legislation to Confer Citizenship Upon Albert Einstein (April 9, 1934)
Good call on this one, Roosevelt Administration lawyer J.T. Fowler. You both concluded that Congress did have the constitutional authority to grant citizenship to Einstein and that it "may be unwise" to do so. From the memo:
Mr. Volker has stated that the files of the Bureau of Naturalization disclose that no question concerning the power of Congress to confer citizenship in such manner was raised until recent years. Formerly, they considered such questions when presented only upon consideration of the merits of the particular case, but lately they have inclined to the view that such naturalization may be construed as a violation of the constitutional provision concerning "an uniform Rule." He says they have no authorities, but rely solely upon the language of the Constitution.
I think the view presently entertained by the Bureau of Naturalization is erroneous. As indicated above, the uniformity mentioned is geographical uniformity. Prior to the Constitution when the states exercised the power of naturalization, it was possible for a person to be a citizen in one state and an alien in another. It was this condition which the constitutional provision was intended to remedy. Furthermore, the practice, since the earliest days, is opposed to the view that Congress may not discriminate against or in favor of aliens upon considerations of race, nationality, geographical residence (either abroad or in this country), relationships by blood or consanguinity, periods of residence, education, etc.
In other words, Congress has the sole power to determine the requisites of citizenship by naturalization, and to determine even more specifically who may or who may not be admitted to such citizenship.