EXECUTIVE WATCH

Foreign Policy asks experts to grade President Obama’s first 100 days, while the New York Times gets the take of prominent historians.

The released torture memos continued to fuel heated debate. Slate’s John Dickerson has a torture commentary roundup and Foreign Policy has a torture timeline.

Executive Watch’s Christopher Schroeder highlights the most salient features of the memos, while Peter Shane says, as a former OLC official, they make him want to vomit. Former President Bush speechwriter Marc Thiessen marshals evidence from the memos themselves to argue that the interrogation techniques foiled terrorist plots and yielded invaluable information on Al-Qaeda. Slate’s Timothy Noah points out, though, that the narrative of Bush apologists is riddled with internal contradictions. Former FBI interrogator Ali Soufan speaks out to say that high-profile suspect Abu Zubaydah provided useful, reliable information only before being waterboarded. Torture opponent Greg Sargent fears that focusing on whether torture yields useful information shifts the terms of the debate away from the significant moral and strategic consequences. The New Republic’s Michael Crowley, however, says opponents should welcome the discussion since it will either repudiate the sole justification for torture or show it works in limited circumstances and is not worth the accompanying costs. After sending mixed signals, Obama spokesman Robert Gibbs says that an independent torture commission is not necessary and that the current inquiry by the Senate Intelligence Committee is proper and sufficient.

The Department of Justice released four Bush-era memos (with minimal redactions) providing a legal framework for justifying torture. The release came in response to a Freedom of Information Act (FOIA) request by the ACLU. The move earned the praise of rights groups and activists, including one of President Obama’s most frequent critics, Salon’s Glenn Greenwald, who calls it courageous. The New York Times says reading the memos is like taking a journey into depravity. The Atlantic Monthly’s Andrew Sullivan avoids getting bogged down in the details of the memos and stresses that a 2005 memo is especially chilling since it was written well after September 11. The New York Times reports, based on the memos, that waterboarding was used 266 times on 2 suspects. With one of the suspects, Abu Zubaydah, intelligence officers had better success with less severe treatment. Nevertheless, former CIA Director Michael Hayden and former Attorney General Michael Mukasey take to the pages of the Wall Street Journal to explain why releasing the memos strengthens Al-Qaeda’s ability to combat the methods of American intelligence agencies and, ultimately, leave Americans less safe.  The Weekly Standard’s Bill Kristol takes a similar line.

Obama and Attorney General Eric Holder maintained throughout the week that CIA officials who relied in good faith on the legal memos would not face prosecution.  The Center for American Progress’s Matthew Yglesias is okay with this position, declaring that accountability for torture is less important than building political consensus. Slate’s Dahlia Lithwick, Empire Burlesque’s Chris Floyd, and Bruce Fein make the case for prosecution and argue that the eagerness to forget past crimes leaves the groundwork for them to reemerge in the future.  ThinkProgress reports on the U.N. Special Rapporteur on Torture’s statement that Obama’s grant of immunity violates international law. Balkinization’s Brian Tamaha writes that those who wish to shield the OLC lawyers from prosecution because they merely dispensed good faith legal analysis saw their case “completely fall to pieces” given the shoddy reasoning in the torture memos. Opinio Juris’s Kevin John Heller also notes that the CIA’s practice of waterboarding exceeded the limits prescribed by the memos, meaning that pertinent CIA officials should not escape liability on a good faith reliance defense either. Echoing Glenn Greenwald, Obsidian Wings’ Publius spotlights the work done by the ACLU to gain release of the memos and says it’s time to become a card-carrying member.

In a much-anticipated decision, the Obama Administration’s Environmental Protection Agency found that carbon dioxide and five other industrial emissions endanger “the health and welfare of current and future generations.” Volokh Conspiracy’s Jonathan Adler explains why the decision could spur broad environmental reforms, such as a cap-and-trade system.  In a letter to lawmakers, free market advocates and industry representatives express their belief that the endangerment finding “will set the stage for an economic train wreck and a constitutional crisis.”

The seemingly never-ending debate surrounding the nominations of Dawn Johnsen and Harold Koh to top administration posts spilled over into this week. In the Wall Street Journal, Walter Dellinger calls on Republican Senators to let their nominations come to a vote and not filibuster. Echoing the Blog of Legal Times Douglas Kmiec, Jonathan Adler explains why Dawn Johnsen’s liberal ideology should not prompt Republican lawmakers to obstruct her nomination. Powerline’s Paul Mirengoff makes the case against confirming Dawn Johnsen. Executive Watch’s Neil Kinkopf issues a point-by-point rebuttal.

Newsweek’s Stuart Taylor and Evan Thomas preview the issues likely to define the debate on the Senate floor concerning Koh’s nomination. The National Review’s Ed Whelan characterizes Koh’s legal philosophy favoring transnational law as a bait and switch on the American people. Curtis Bradley and Jack Goldsmith reference Koh’s deference to international law in their Washington Post guest column criticizing a Southern District of New York’s refusal to grant a motion to dismiss in a lawsuit brought by the victims of apartheid against companies who did business with the South African apartheid regime. Opinio Juris’s Kevin Jon Heller calls the column “utterly perverse.”

The Department of Homeland Security issued a report warning local law enforcement that the confluence of several factors such as the election of a black president and an economic downturn could fuel a resurgence of violent right-wing extremism. The National Review’s Andy McCarthy calls the report “appalling” and a “nakedly political document.” Glenn Greenwald says that after the Bush years, conservatives are getting what they deserve when it comes to government surveillance. On the general topic of surveillance, ThinkProgress’s Matt Corley points out that the FISA compromise of last summer has paved the way for wide-scale abuses by the NSA.

Foreign Policy’s David Rothkopf calls attention to the number of czars the Obama administration has appointed in three months, noting that it now exceeds the 18 czars who ruled Russia over 300 years during the Romanov Dynasty.  Volokh Conspiracy’s Ilya Somin says that the proliferation of czars “makes an already excessively large and complex government even more difficult … to monitor.”

Mark Danner releases part two of his piece on the Red Cross Torture Report, chronicling the genealogy of torture policies and the grisly details of their implementation. Propublica says that the complicity of medical professionals in torture is particularly troubling and warrants further inquiry.

Writing for Slate, Bruce Fein calls President Obama a czar and accuses him of wielding executive power like an imperialist. The renewed disgruntlement with Obama stems largely from the Department of Justice’s decision to invoke the state secrets privilege, again - this time in asking for the dismissal of a suit charging the NSA with illegal surveillance of millions of Americans’ phone calls and emails. ABCNews’ Jake Tapper charts the president’s evolution on the issue in the aptly titled “On State Secrets, Meet Barack W. Obama.” The Washington Post’s Dan Froomkin says invoking the privilege here is “utterly un-American.” Harper’s Scott Horton points out the equally tenuous claim to sovereign immunity asserted by the administration in the case, which Volokh Conspiracy’s Orin Kerr also calls a “terrible argument.”

Many on the Left initially applauded CIA Director Leon Panetta’s announcement that the agency would be decommissioning its infamous overseas black sites and that contractors would no longer be authorized to conduct interrogations. Scott Horton, among others, is taking issue with Panetta’s promise not to investigate or prosecute those involved in torture and other suspect activities under the Bush Administration.  The Daily Beast’s John Sifton smells a cover up. CQ Politics personalizes the issues at stake by telling the story of CIA interrogator Mark Swanner, who has gone off the books after Iraqi Manadel al-Jamadi died in his custody.

Slate’s Julian Davis Mortenson breaks down the implications of the Spanish investigation into allegations of torture at Guantanamo Bay. Foreign Policy’s Tom Ricks says that even if the architects (such as Dick Cheney) and perpetrators of torture are not prosecuted, they will still be “waterboarded by history.”

The D.C. Circuit Court refused to find Secretary of Defense Robert Gates in contempt for refusing to release 17 Chinese Uighur detainees at Guantanamo Bay following a court ruling absolving them of any ties to terrorism. The Weekly Standard’s Thomas Joscelyn suggests that more detainees are likely to find themselves in legal limbo since various European countries are unwilling to accept them in their borders.

The DOJ filed an appeal in federal district court to delay execution of last week’s ruling extending some constitutional rights to detainees held at Bagram Air Force Base in Afghanistan. Salon’s Glenn Greenwald says it’s further evidence that Bagram is Obama’s Guantanamo.

Harold Koh, the Obama Administration’s choice to become chief legal counsel at the State Department, continued to fuel heated exchanges in the blogosphere this week. Opinio Juris’ Julian Ku has ten questions he wants Koh to answer.  In perhaps the most substantive dialogue, the National Review’s Ed Whelan points to a Harvard Law Review article by Curtis Bradley and Jack Goldsmith (”Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997)) to criticize the soundness of Koh’s transnationalist legal philosophy. Publius of Obsidian Wings responds that Whelan mischaracterizes Koh’s philosophy and also notes that the Bradley/Goldsmith article “was not handed down from Sinai” and remains the subject of scholarly debate. Meanwhile, Volokh Conspiracy’s Eric Posner says that the Koh controversy is much ado about nothing and asserts that Koh merely sees international law as a vehicle for pushing the judiciary to the Left and will be pragmatic when faced with countervailing concerns.

Writing for Executive Watch, John McGinnis makes the case that Eric Holder politicized the DOJ by overruling an OLC opinion. Executive Watch’s Neil Kinkopf disagrees. Balkinization’s Mark Tushnet and Volokh Conspiracy’s Jonathan Adler engage in a parallel debate.

Executive Watch’s Peter Shane lays out four ways that Obama’s use of signing statements is already troubling.

Writing last Friday, the National Review’s Andrew McCarthy questions whether Obama has what it takes to take on Somalia’s pirates and their testing of the rule of law. On Sunday, Obama authorized the military to use the force necessary to rescue a U.S. captain in pirate captivity, paving the way for a successful rescue and earning the fanfare of the mainstream media.

The Department of Justice requested another delay in releasing three opinions from the Bush Administration’s Office of Legal Counsel providing the legal justification for torture. Newsweek reports that the Obama administration is divided on releasing the memos. A New York Times editorial calls on President Obama to heed his own pledge of transparency and release them. Mother Jones’ Kevin Drum says that it is for the better if the release embarrasses allies who assisted in torture and makes them less willing to do it next time. Harper’s Scott Horton suggests that if John Brennan, the prime advocate of keeping the tortures secret, gets his way it means that Dick Cheney is still exercising influence on current policy.

A federal district court judge ruled that some prisoners detained at Bagram Air Force Base in Afghanistan are entitled to challenge their imprisonment.  Volokh Conspiracy’s Orin Kerr thinks the opinion is a “careful and thorough application of Boumediene,” but that the Supreme Court may still see things differently. The editors of the National Review view the ruling as an imperial judiciary going global, while the ACLU sees it as “another rebuke to the government’s claim that is free to establish law-free zones.”

The Blog of Legal Times reports on further delay of the confirmation vote for Dawn Johnsen, President Obama’s nominee to run OLC. Executive Watch’s Neil Kinkopf rebuts the dominant criticisms of the nominee and calls on the Senate to “free Dawn Johnsen.” Writing for Balkinization, Andrew Koppelman is appalled at the misappropriation of his statements about Johnsen by prominent Republican legislators and conservative commentators and says their criticisms amount to libel.  ThinkProgress lists other Obama nominees currently being held up for confirmation.

A DOJ task force has cleared another detainee, Ayman Saeed Batarfi, for release from Guantanamo Bay. The Weekly Standard’s Thomas Joscelyn ties Batarfi to al-Qaeda and lists the reasons why he is worried about his release.  In other Gitmo-related commentary, five authorities on national security law and civil liberties debate the lessons to be drawn from the case of 17 Chinese Muslim Uighurs, who are no longer considered enemy combatants, but remain in legal limbo. The Blog of Legal Times reports on an alliance of detainees’ lawyers challenging the legality of Obama’s Guantanamo guidelines.  The ACLU’s Will Matthews writes in Daily Kos about the “callousness” of U.S. government officials toward immigrant detainees, perhaps a reason prompting the Nation’s Jeanne Theoharis to call for the eradication of a Guantanamo mindset, not just the closing of a base.

Democrats on the Senate Judiciary Committee swiftly moved forward with a hearing for Obama’s first circuit court nominee, prompting a Republican boycott because of inadequate time to prepare. The National Review’s Ed Whelan says that the Democrats’ maneuver reveals a fear that a full review of the nominee, David Hamilton, will show that he is far from a moderate.  Volokh Conspiracy’s Jonathan Adler is skeptical that Republicans could uncover anything meaningful with more time and says that Congress should generally assume a deferential posture toward a president’s nominees. Two more appellate court nominees are on the way. Just as the Obama Administration reasserted the American Bar Association’s role in the nomination process, some are accusing it of left-wing bias, including the social scientist authors of this paper.

Slate’s Dahlia Lithwick documents an alleged right-wing smear campaign against Harold Koh, the nominee to become the chief counsel at the State Department. National Review’s Ed Whelan issues a rebuttal. The Politico highlights the surprising decision of President Bush’s solicitor general, Ted Olson, to come out in support of Koh. National Review’s Andy McCarthy issues a rejoinder. Writing for Balkinization, Kenji Yoshino  makes perhaps the most comprehensive case for Koh.

The New York Daily News pans the Obama Administration’s decision to abandon the phrase “Global War on Terror.” Matthew Yglesias, though, says that the change will make it easier to base national security decisions on sound policy and not just good politics.  Nevertheless, the change in rhetoric prompts the New York Times’ Peter Baker and  the Weekly Standard’s Michael Goldfarb to ask more broadly whether Obama’s foreign policy is different only in word from Bush’s.

Reflecting on the National Court of Spain’s decision to review a complaint implicating several Bush-era lawyers allegedly involved in crafting the administration’s legal justification for torture, Stephen Brainridge sets forth the troubling consequences of permitting claims hinging on “universal jurisdiction.” Scott Horton says that the Spanish action is better than nothing, though a full-fledged domestic investigation and prosecution would be optimal. Earlier in the week it appeared that Senator Patrick Leahy (D-VT) was backing away from his previous idea of instituting a Truth Commission, but later clarified that the Commission is not dead, just resting.

Ed Whelan takes to the pages of the Washington Post to argue that Attorney General Eric Holder has politicized the Department of Justice by overriding the OLC after it determined that the Voting Rights Bill - which would grant the District of Columbia a voting member in the House - is unconstitutional. Volokh Conspiracy has a slew of posts analyzing the matter and its implications.  Already Holder appears to be falling short of Scott Horton’s five steps to fix the DOJ, though, Horton points out, Holder’s repudiation of former Senator Ted Stevens’ (R-AK) corruption conviction represents a step in the right direction.

Writing in the wake of Treasury Secretary’s plan to restore strength to the financial sector, Simon Johnson writes in the Atlantic Monthly that the finance industry has captured the American government and needs to be separated for enduring reform to happen. Paul Krugman, Glenn Greenwald, and Joseph Stiglitz concur. The New Republic’s Noam Scheiber, however, thinks that Johnson overstates his case and believes that the Geithner-Obama plan is an okay deal for taxpayers.  In other financial commentary, Time has an important piece on the influence of behavioral economists (who are increasingly trendy in legal literature these days) on the Obama Administration.

Executive Watch’s Christopher Schroeder describes President Obama’s 80 percent problem, rebuffing efforts, by the Left and Right alike, to pin Obama as simply another President Bush. Nevertheless, Curt Bradley and Eric Posner maintain that changes have been more symbolic than substantive. Neil Kinkopf makes the case that it’s still too early to define, let alone judge, Obama’s theory of executive power.

Assuming their respective ideological stripes, Matthew Yglesias and Scott Horton write approvingly of the Obama Administration’s disavowal of the phrase “War on Terror,” while Michael Goldfarb and Andy McCarthy think it marks the end of taking terrorism seriously.

A Washington Post front-page article documents the torture of Abu Zubaida, the series of false leads it provoked, and evidence that it failed to foil any terrorist plots. Harper’s Scott Horton says the article is further proof that torture serves as a recruitment tool for al-Qaeda and has no offsetting benefits for the U.S. National Review’s Marc Thiessen vehemently disagrees and says that the Post article is rife with errors and misinformation. Richard Painter, as a guest contributor at Volokh Conspiracy, has a series of posts asserting that torture is a misguided policy. The Bush State Department’s chief counsel on Guantanomo litigation, Vijay Padmanabhan, joins an emerging chorus of voices from the Bush Administration now speaking out against torture.

Juris notes that in an interview with CBS’ 60 Minutes, Obama affirmed his commitment to international law and due process rights when confronting former Vice President Dick Cheney’s remarks that closing Guantanamo Bay makes Americans less safe. The Weekly Standard takes issue with Obama’s reply, asserting that he continues to hide a Pentagon report documenting the high recidivism rates of former Guantanamo prisoners. Thomas Joscelyn of the Weekly Standard also criticizes Director of National Intelligence Dennis Blair’s statement that some being held at Guantanamo may be released in the U.S. and receive government assistance. Glenn Sulmasy examines the broader difficulties that come with closing Guantanamo. The story of 17 Chinese Uighurs is perhaps exhibit A. They are seeking to hold Secretary of Defense Robert Gates in contempt of court for refusing to transfer or release them pursuant to a D.C. Circuit order.  A Uighur who was released in 2006 writes to President Obama, pleading for the release of those still being held.

The Guardian describes Spanish Judge Baltazar Garzon’s decision to have prosecutors examine the Bush Administration lawyers’ role in developing a torture policy for those held at Guantanamo Bay. Andrew Sullivan sees the move as the wheels of justice turning, while Matthew Yglesias views at as an important symbolic victory.  Scott Horton says there is an accountability imperative. The ACLU spotlights the piercing remarks of Jonathan Turley on the Bush Administration’s alleged war crimes and calls for Attorney General Eric Holder to hire an independent prosecutor.  Balkinization’s Sandy Levinson senses hypocrisy in the calls for the prosecution of those like John Yoo.

Jurist has the details on President Obama’s nomination of Yale Law School dean Harold Koh to be chief legal counsel at State. Koh has come out as a fierce opponent of torture and, in 2002, declared that a unilateral, preemptive war with Iraq would violate international law. Concurring Opinions is happy to see the influence of the legal academy on the Obama Administration. The Weekly Standard worries that Koh and Obama’s emerging legal team will hog-tie the president in war-time. The National Review raises concerns about Koh’s apparent affinity for transnational legal processes, echoing the sentiments of former ambassador to the United Nations John Bolton, who feels that American sovereignty is under siege.

The New York Times chides Republican senators for delaying the confirmation of Dawn Johnsen to head the White House’s Office of Legal Counsel. Writing for Politico, Walter Dellinger makes the case for Johnsen. National Review’s Andy McCarthy sticks to his opposition, chronicling Johnsen’s alleged radical views on abortion and other issues. Weeks back, Executive Watch’s Christopher Schroeder issued a stinging critique of McCarthy’s position. While Johnsen has been held up, assistant Attorney General nominee David Kris moved forward, as did three other nominees for top DOJ posts.

Speaking of nominations, CQ Politics notes that Obama currently outpaces Bush in making nominations to the Senate and having them confirmed. Executive Watch’s Peter Strauss highlights the important role Congress has played historically in the confirmation process.

A rare ideological alliance emerged in opposition to Treasury Secretary Tim Geithner’s proposal to seize non-bank financial institutions that present systemic risks. Left-leaning economists like Joseph Stiglitz and Paul Krugman joined House Republicans in opposing the measure and calling for receivership. NYU Economist Nouriel Roubini, however, thinks the Geithner plan has promise. The New Republic’s Jason Zengerle looks to a 1999 New York Times article on banking reform to credit the public figures who predicted the current crisis. Propublica probes what the Fed knew about AIG before forking over $85 billion last September. Glenn Greenwald bemoans the persistent intermingling of corporate power and government reform. Richard Epstein takes a decidedly different view and argues that the recent bonus tax on AIG is unconstitutional.