by Todd E. Pierce
January 05, 2015

On October 23, 2001, the Office of Legal Counsel issued a legal opinion that would shock most Americans if they realized its full implications. By all appearances, it is still in effect, judging by military surveillance operations taking place in the U.S. by the Department of Defense and the military command within it, the National Security Agency (NSA). The opinion was entitled: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (emphasis in original).

Martial law is not obvious to most people most of the time in the U.S., but military presence was evident on the streets, rooftops, and riverfront in St. Paul during the 2008 RNC political convention. Military was also used for crowd control at the DNC convention in Denver that year. Photo: Army News Service.

What is the Office of Legal Counsel – or “OLC” for short – that made such a bold move? It is a secretive office in the Department of Justice. The purpose of the OLC is straightforward. It sits as a de facto court within the White House that decides the legal questions that set the boundaries for how the federal government runs day-to-day. Be they the highest presidential appointee or lowliest bureaucrat, a government official who complies with the OLC’s opinion is generally immune from later prosecution or liability.

They are immune, that is, unless the OLC attorney was not giving “good faith legal advice” when, in fact, the lawyers were just following orders to “legalize” an otherwise criminal act. That “good faith legal advice” would not then serve to protect their clients. Lawyers can’t help with committing crimes, and when they do – even OLC lawyers – they can be prosecuted when they knowingly help plan or commit a crime. In fact, a lawyer was prosecuted at Nuremberg for his role in committing war crimes.

The lawyers who wrote the OLC opinion about the use of military force within the United States were Robert Delahunty, now teaching “law” at St. Thomas University Law School, Minneapolis, and John Yoo, who is back teaching the same sort of law at Boalt Law School, University of California, Berkeley. By “the same sort of law” is meant their idiosyncratic belief that the President, acting as “Commander in Chief,” has dictatorial-like powers.

This is the “unitary executive theory” – a radically un-American, unconstitutional and extralegal ideology that former Vice President and torture enthusiast Dick Cheney has been pushing since the Iran-Contra Affair. In other countries, but particularly Germany from 1933 to 1945, in which citizens lived under a dictatorship, this was called “prerogative” government, as described by German Jewish lawyers. Both Delahunty and Yoo continue working to shoehorn this radical legal theory into respectability with prolific writing of law review articles promoting it.

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