AG opinion on constitutionality of proposed OLC reporting act; forthcoming scholarship

1.  Attorney General Mukasey, Constitutionality of the OLC Reporting Act of 2008 (Nov. 14, 2008) (made public 1/12/09)

OLC has released a memorandum from AG Mukasey to the Senate Majority Leader, from November 2008, declaring his view that proposed legislation requiring public disclosure of OLC memos in certain scenarios would be unconstitutional.  The memo is posted here: http://www.usdoj.gov/olc/2008/olc-reporting-act.pdf

2. Forthcoming scholarship

“True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers”

Roger Williams University School of Law Legal Studies Research Paper Series

PETER MARGULIES, Roger Williams University School of Law
Email: pmargulies@rwu.edu

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department’s Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes.

John Doe, Inc. v. Mukasey (2d Cir) (NSLs)

* John Doe, Inc. v. Mukasey (2^nd Cir. Dec. 15, 2008)

A very interesting decision today by the 2^nd Circuit in the long-running litigation involving the FBI’s ability to issue “national security letters” to communication service providers and to direct recipients of such letters not to go public with that information.  The panel (Newman, Calabresi, and Sotomayor), in an opinion by Judge Newman, has reinstated the government’s capacity to issue such letters, subject to a novel procedural requirement in which the government must initiate judicial review of the non-disclosure order in the event that the letter recipient wishes to contest the order.