OLC

  • September 1, 2009

    Breaking, from Scott Horton:

    Two newly-obtained documents show how American diplomats during the Bush administration worked tenaciously to incorporate what is commonly known as the Nuremberg Defense into a new international convention addressing enforced disappearances.

    The rejection of the notion that government agents could avoid liability for crimes by arguing that they were simply following orders had been a bedrock principle of the American government ever since shortly after the end of World War II, when that defense was employed during the Nuremberg war-crimes trials.

    ...

    "What the OLC memos did on a domestic basis, these documents show American diplomats attempting to do on the international stage," said Joanne Mariner, an analyst at Human Rights Watch with expertise on the U.S. extraordinary renditions program. 

    The documents are available here and here.

    Horton's analysis of the torture investigation recently announced by Attorney General Eric Holder is here.

    And on a peripherally related note, Andrew Sullivan just published this hard-hitting deconstruction of Marc Ambinder's Nazi/torture logic.

  • August 28, 2009

    More OLC Memos:  "The Office of Legal Counsel, responding to a Freedom of Information Act request, has now released a treasure trove of new memoranda discussing the Bush Administration's war on terror policies," writes Prof. Jack Balkin at Balkinization. "The highlights include memos by Jack Goldsmith telling the CIA not to do anymore waterboarding in May of 2004, and a memo by his successor at the OLC, Daniel Levin, telling the CIA they can go ahead and do it on August 6, 2004. There are also two memoranda from John Yoo arguing for the President's right to use military force at any time without congressional approval and offering CIA interrogators a good faith defense to torture."

    Dick Cheney is Mad:  From Christy Hardin Smith: "Why is Cheney so irate? Because bluster gets him column inches without having any real fear of direct questions of his own involvement. Why? Because that just isn't how things are done in the Beltway. No inconvenient truths that might rock your access boat."

    Torture Doesn't Work, So ...  Richard Haas, president of the Council of Foreign Relations, is being held to account for what he said during an interview on Morning Joe, including this line: "I really think putting this in legal channels as opposed to just the policy channels is something, just like the politics, we as a society, will regret. We need to look at all of our tools. We may reject some of these things. Let's say on balance they're not worth it. But other things we may say to do it given who we're up against."

    "I'm with Jack Bauer on this one."  That's the quote from Fox's Chris Wallace. Here's the clip

  • August 24, 2009

    Today, the CIA released this report by the agency's Inspector General. The Washington Independent reports that the just-unclassified document, which remains heavily redacted, "was so charged within the agency that former CIA Director Michael Hayden clashed with [Inspector General John] Helgerson over the inspector general's independence and investigative authority."

    While a statement from CIA Director Leon Panetta says that "[i]n many ways, this is an old story," the report's revelations include the following: 

    • 1. The report states, "One of the psychologists/interrogators acknowledged that the Agency's use of the technique differed from that used in SERE [Survival Evasion Resistance Escape] training and explained that the Agency's technique is different because it is 'for real' and is more poignant and convincing."
    • 2. Also, the CIA failed to disclose accurate medical information to the Justice Department when requesting permission to waterboard detainees. Rather, they provided medical information relevant to waterboarding as performed during SERE trainings which, as mentioned above, was less "poignant and convincing" than the method employed by the CIA.
    • 3. While the report expressly implicates Justice Department attorneys who gave oral permission for torture to CIA officials, it appears that this permission was only granted after several uses of the "extreme interrogation techniques."
    • 4. In what the report calls the "most significant" incident, one debriefer acted without authorization, using an unloaded handgun and a drill to coerce a detainee.
  • August 10, 2009

    Debate continues over whether to prosecute people for torture, and how wide a net prosecutors should cast.

    The L.A. Times reports that former ACS Board Member "U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects." The piece goes on to recite a list of incidents at Guantanamo Bay, Abu Ghraib, the detention facility at Bagram Air Base north of Kabul, some of which may be the subject of such probes.

    Some, including current and former Justice Department and CIA officials quoted anonymously in the L.A. Times piece, are critical of the potential prosecutions. "[I]f they appoint a special prosecutor, it would ultimately be unsuccessful, and it would go on forever and cause enormous collateral damage on the way to getting that unsuccessful result," said one former Justice Department official.

    Others are critical of the likely probe for other reasons. "An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all," said Human Rights Watch's Tom Malinowski.

    The point is underscored by Spencer Ackerman:

  • August 5, 2009
    The Washington Post editorial board today urged the Senate to act on several of the Obama administration's nominations, including Indiana law school professor and former ACS Board of Directors member Dawn Johnsen to head the Office of Legal Counsel (OLC). The Post in "Nominations Roadblock," noted that Johnsen's nomination was approved by the Senate Judiciary Committee almost five months ago, but remains mired in the Senate.

    The Post wrote:

    This is unconscionable. Ms. Johnsen is highly qualified for the OLC post: She served for several years as a top assistant in the office during the Clinton administration and has earned the respect of top OLC lawyers who worked for Republican and Democratic presidents. She should be confirmed, but her nomination has been held hostage mainly by Republicans who are using her strong pro-choice views as political fodder. It has not helped matters that Senate Majority Leader Harry M. Reid (D-Nev.) has been less than assertive in pushing for a vote.

    The newspaper's editorial also noted that the Senate has stalled on confirming three of the administration's federal appeals court nominees.