• July 31, 2009
    Guest Post

    By Sudha Setty, Assistant Professor of Law, Western New England College School of Law. Professor Setty is the author of a recently released ACS Issue Brief, "National Security Without Secret Laws: How Other Nations Balance National Security Interests and Transparency of Law."

    A fundamental tenet of the rule of law is that a state has no secret laws. Yet in the post-September 11, 2001 era, the Bush administration maintained secret legal policies governing parts of the "war on terror" that implicated human rights and civil liberties issues. Some of these then-secret legal policies-such as the 2002 and 2003 Office of Legal Counsel (OLC) memoranda sanctioning torture during the interrogation of suspected terrorists-staked out positions at odds with legislation, treaties and court decisions. Both the substance of these memoranda and the secrecy surrounding them were rightly criticized by many scholars and activists-notably including Dawn Johnsen, President Obama's nominee to head up the Office of Legal Counsel.

    But is disclosure and transparency really feasible when we're talking about counterterrorism, or do we undermine our national security programs in an effort to adhere to the rule of law? The Bush administration defended its extreme lack of disclosure by claiming that various legal policies, including the OLC memoranda, would, if disclosed, assist the cause of those plotting terrorist acts against the United States. In my recently released Issue Brief, I reject this particular defense of secrecy based, in part, on the fact that other nations facing serious national security issues-I consider India, Israel and the United Kingdom-do not resort to the creation of bodies of secret law to provide legal comfort for their counterterrorism operations.

    The substance of India's antiterrorism policies is often harsher than what has been (thus far) established in the United States-for example, antiterrorism laws allow for lengthy preventive detention and the denial of substantial access to counsel before trial. However, the process by which Indian antiterrorism legal policy is developed is relatively transparent. Repeatedly, the question of how to frame a long-term legislative response to terrorism has been referred to the Indian Law Commission, a nonpartisan commission of respected lawyers and jurists who respond to government requests for legal recommendations. The Law Commission circulates its reports and recommendations to the public and distributes reports to government officials for review, comments and, ultimately, debate in Parliament.

  • June 2, 2009
    Guest Post

    By Ariel Lavinbuk, an attorney at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP and a Principal of the Truman National Security Project

    In recent weeks, President Obama's approach to national security - particularly on issues related to terrorism - has drawn considerable criticism from his base. What began as disappointment over the decision to withhold images of past detainee abuse quickly turned to disillusionment over the continuing use of military commissions. Such concerns now pale in comparison to the almost universal outrage directed at plans to "preventatively detain" certain individuals for a potentially endless period of time. Taken together, these policies have been seen as a betrayal by the left, which has taken to wondering aloud whether President Obama is any different than his predecessor.

    There is merit to some of the concerns that have been expressed, but there is also considerable danger in overlooking what President Obama has accomplished in a very short time, and in underestimating the challenges facing our country. These reactions distract from the considerable work that remains to be done in reforming our nation's response to terrorism.

    In his first four months in office, President Obama has banned all interrogation techniques not listed in the Army Field Manual and guaranteed Red Cross access to all detainees still being held. At the same time, he has loosened Freedom of Information Act (FOIA) standards, released more Office of Legal Counsel (OLC) memos and ordered a review of government classification procedures. These are significant accomplishments. We forget how recently it was that we did not even know who our government was detaining, let alone what it was doing to them. Even better, these actions have inspired renewed confidence in the idea that adhering to our values is a strategic asset, not a liability; indeed, by a 55-to-37 margin, the American public now believes that President Obama's policies have made the nation safer than it was under President Bush.

  • May 15, 2009

    The American Constitution Society is proud to announce that Sen. Sheldon Whitehouse (D-R.I.) will speak at the ACS National Convention.

    Whitehouse sits on the Senate Judiciary Committee and serves as chair of the Subcommittee on Administrative Oversight and the Courts. In his capacity as oversight subcomittee chair, Whitehouse recently convened a hearing on torture. Whitehouse has been an outspoken advocate of Truth Commission on torture.

    Continuing in his leadership role in the torture accountability debate, Whitehouse recently fielded questions about suggestions that then-Vice President Dick Cheney ordered a former Iraqi intelligence officer waterboarded in order to produce evidence of links betweeen al Qaida and Saddam Hussein. See Whitehouse's handling of the revelations below.

  • May 13, 2009

    Roll Call reports:

    As Senate Majority Leader Harry Reid (D-Nev.) moves to ease a backlog of executive branch nominations, he suggested on Tuesday that he does not have the votes to bring up President Barack Obama's pick to run the Department of Justice's Office of Legal Counsel.

    "Right now we're finding out when to do that," Reid said, responding to a question about the status of Indiana University law professor Dawn Johnsen's nomination to the Justice post. "We need a couple Republican votes until we can get to 60."

    According to the Washington Monthly, "this is just ridiculous." [Emphasis and links theirs.]

    Let's also take a moment to note that Johnsen is an exceptional nominee, who is unquestionably qualified, and clearly deserves confirmation.

    That said, what kind of show is Harry Reid running here? His caucus has 59 members, and Sen. Dick Lugar of Indiana, a conservative Republican, has already endorsed Johnsen's nomination. We have Democratic senators who won't even let the president's choice for the OLC get a vote because she's pro-choice?

    Firedoglake's Christy Hardin Smith is no less appalled

  • May 7, 2009
    Attorney General Eric Holder Jr., during a Senate Judiciary Committee hearing, reiterated his support for Dawn Johnsen to head the Office of Legal Counsel (OLC). Holder told the committee that the OLC is being run by capable lawyers, but that getting Johnsen confirmed as OLC director was "probably my top priority."

    Johnsen, an Indiana University law professor and former member of the ACS Board of Directors, was approved by the Senate Judiciary Committee in March, but her nomination has since been held up by opponents, who take issue with her criticism of some legal advice from the OLC during the Bush administration. Johnsen's nomination has garnered an array of support, including newspapers, a group of 70 legal scholars and former OLC directors.