Archive for the ‘News’ Category

Weekly Web Watch (4/19-4/26)

April 26, 2009

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.

Executive Action Report: 4/15/09 - 4/21/09

April 22, 2009


  • On Wednesday, April 15, the New York Times reported that, according to some government officials, NSA surveillance operations have been engaged in “overcollection” in recent months, allegedly exceeding even the broad limits set by Congress last year. Although the NSA claims that its operations are “in strict accordance with U.S. laws and regulations,” the Senate Intelligence Committee is has decided to investigate the surveillance program.
  • As of Wednesday, April 15, President Obama was still mulling over proposals relating to the release of Bush administration torture memos. That same day, Attorney General Eric Holder reiterated the administration’s commitment to openness, but cautioned that transparency has its limits. The following day, however, the President announced the release of four OLC memos authored from 2002 to 2005 (as part of the ACLU’s FOIA litigation), stating that “these methods of interrogation are already a thing of the past.” Some think that more disclosures may still be coming.
  • In light of the grisly interrogation details (e.g., waterboarding Khalid Sheikh Mohammed 183 times in a single month) revealed in the newly released OLC memos, Senator Patrick Leahy has renewed his call for a Truth Commission to investigate the alleged abuses of the Bush administration, and various commentators (see here, here, here, and here) have urged the impeachment of Bush administration officials, especially Jay Bybee, former OLC head. While Obama initially stated that “[t]his is a time for reflection, not retribution,” he has stopped short of promising that Bush administration officials would not be sanctioned for their involvement with torture.
  • While President Obama may be hesitant to prosecute members of the previous administration, it looks as though Spain may take up the challenge. Although Spanish Attorney General Cándido Conde-Pumpido denounced the idea on April 16, Judge Baltasar Garzón seems keen on moving forward.
  • Although the Fed initially requested that banks undergoing “stress tests” not reveal the results, last week the administration announced that it would disclose “stress test” results for the nation’s 19 biggest banks by May 4. However, it appears that there is some uncertainty and disagreement as to how (and how much of) the information should be released.
  • As if disclosing “stress test” results weren’t enough to deal with, the Fed is now also facing a Freedom of Information Act lawsuit, filed by Bloomberg LP on April 16. The suit alleges a lack of transparency with respect to $2 trillion that the Government has loaned to financial institutions. (more…)

Weekly Web Watch (5/12-5/19)

April 19, 2009

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.”

Executive Action Report: 4/8/09 - 4/14/09

April 15, 2009
  • In an Executive Order issued on Wednesday, April 8, President Obama took a step towards reforming health care by establishing the White House Office of Health Reform and a separate Office of Health Reform in the Department of Health and Human Services. The Offices will work to coordinate the administration’s efforts to make health care more available and affordable. The White House office will be headed by former Clinton administration official Nancy-Ann DeParle.
  • On Wednesday, April 8, a congressional oversight panel released a report declaring the success of the administration’s financial programs to be “mixed.” Harvard Law professor Elizabeth Warren, who heads the panel, said that there is a need for greater transparency—a call that was echoed by House Speaker Nanci Pelosi. In spite of this, the Fed has requested that financial institutions currently undergoing “stress tests” not reveal the results.
  • On April 8 President Obama announced the nomination of Mary Smith to head the DOJ’s Tax Division. On April 13, Ian Gershengorn was tapped as Deputy Assistant Attorney General in the DOJ’s Civil Division, with oversight of the Federal Programs Bench. And on April 14, it was revealed that President Obama will likely tap Fannie Mae Chief Herb Allison to run the $700 billion bailout as Assistant Secretary for the Office of Financial Stability.
  • Attorney General Eric Holder mixed things up at the Justice Department on April 8, while indicating that he would make selections on the basis of experience rather than politics. Significantly, he named a new head of the Office of Professional ResponsibilityMary Patrice Brown. Brown’s appointment came one day after Federal District Court Judge Emmet Sullivan called the silence at the OPR “deafening” as he set aside charges against former Senator Ted Stevens (at the DOJ’s request) and commenced criminal contempt proceedings against the Stevens prosecutors. On April 14, Holder said he would improve DOJ prosecutor training.
  • Also on Wednesday, the Obama administration indicated that it would participate in direct group talks with Iran. The U.S. and its European allies are reportedly considering dropping the long-standing condition that Iran shut down its nuclear facilities at an early stage of negotiation.
  • On Thursday, April 9, the President announced that he would seek $83.4 billion in funding for the wars in Iraq and Afghanistan, to the consternation of some Democratic politicians. Meanwhile, General Raymond Odierno told a British newspaper that U.S. combat troops may not be able to withdraw from Iraqi cities by the June 30 deadline. Over the weekend, however, Odierno said he was certain that all U.S. troops will be gone by 2011. (more…)

Weekly Web Watch (4/5-4/12)

April 12, 2009

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.

Executive Action Report: 4/1/09 - 4/7/09

April 8, 2009
  • Last week the President and First Lady kicked off a week-long tour of Europe.
    • On his first full day in London, Wednesday, April 1, President Obama paid a visit to Queen Elizabeth II, held a press conference with Prime Minister Gordon Brown, and met with both Chinese President Hu Jintao and Russian President Dmitry Medvedev.
    • On Thursday, April 2, President Obama attended the G20 summit, Among other things, the G20 leaders agreed to regulate financial institutions more strictly and to commit a total of $1.1 trillion to the IMF. President Obama called the agreement a “turning point.”
    • On Friday, April 3, the Obamas were off to France. Speaking before a crowd in Strasbourg, the President stressed the need to rid the world of nuclear weapons, address climate change, and continue to fight terrorism. President Sarkozy said his country would accept one Guantanamo prisoner.
    • On Saturday, April 4, President Obama attended a 60th anniversary NATO Summit. Obama pressed for increased NATO support in Afghanistan, but received a less-than-enthusiastic response.
    • On Sunday, April 5, the President met with Czech Prime Minister Mirek Topolanek in Prague. Obama again called for reductions in nuclear weapons worldwide, and denounced North Korea’s missile launch.
    • Obama paid a visit to Turkey on Monday, April 6. Speaking to Turkish parliament, the President declared that the United States “is not and will never be at war with Islam,” and called Turkey a “critical ally.”
    • On Tuesday, April 7, President Obama rounded off his foreign tour by paying a surprise visit to Baghdad, Iraq. The President met with Prime Minister Nouri al-Maliki, and made clear his position that Iraqis “need to take responsibility for their own country.”
  • Meanwhile, back in the United States, on Wednesday, April 1, the Senate Judiciary Committee held a confirmation hearing for David Hamilton, whom President Obama has nominated to serve on the 7th Circuit, as well as Ronald H. Weich (nominee for Assistant AG of Office of Legislative Affairs) and R. Gil Kerlikowske (nominee for Director of National Drug Control Policy). Somewhat surprisingly, the sparsely-attended hearing lasted less than two hours. Meanwhile, Hamilton’s sister-in-law Dawn Johnsen is still awaiting confirmation as OLC head (Neil Kinkopf, writing at Executive Watch, plead for the Senate to “[f]ree Dawn Johnsen”).


Weekly Web Watch (3/29-4/5)

April 5, 2009

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 Action Report: 3/25/09 - 3/31/09

April 1, 2009
  • Last week President Obama announced the nomination of Yale Law School dean Harold Hongju Koh as legal advisor to the State Department. A nomination hearing has not yet been scheduled.
  • On Wednesday, March 25, the Senate unanimously confirmed David Kris as assistant attorney general for the National Security Division. The next day, March 26, the Senate Judiciary Committee gave a thumbs-up to three DOJ nominees: Lanny Breuer as assistant AG for the Criminal Division, Christine Varney as assistant AG for the Antitrust Division, and Tony West as assistant AG for the Civil Division. Meanwhile, OLC Head-to-be Dawn Johnsen is still waiting for a confirmation vote.
  • Speaking of Obama nominees, a Senate Judiciary Committee hearing for the President’s first judicial nominee, David Hamilton, has been set for April 1. That same day, the Judiciary Committee will question Ronald Weich, nominee for assistant AG for the Office of Legislative Affairs, and R. Gil Kerlikowske, nominee for Director of National Drug Control Policy.
  • On Thursday, March 26, Treasury Secretary Tim Geithner announced expansive plans to regulate financial firms.  The scheme, if approved by Congress, would grant the administration power to take over non-bank financial institutions, including hedge funds. The AP reports that hedge funds are “generally accept[ing]” the plan.
  • On Friday, March 27, attorneys representing Guantanamo detainees responded to the DOJ’s March 13 memo, which outlined the administration’s stance on indefinite detention, with their own filing. Relying on the AUMF and Hamdi v. Rumsfeld, the attorneys argue that the President is still acting outside of his powers.


Weekly Web Watch (3/22-3/29)

March 29, 2009

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.

Executive Action Report: 3/18/09 – 3/24/09

March 25, 2009
  • Last week, Peter Orszag, director of the White House Office of Management and Budget, indicated that although the administration prefers not to use reconciliation to bypass a GOP filibuster and push through global warming and health care legislation, it would not take the option off the table. After some Republican pushback, Capitol Hill Democrats have backed away from the optionfor the time being.
  • On Wednesday, March 18, the Obama administration reversed an earlier decision by the Bush administration by pledging its support to a non-binding UN Resolution to decriminalize homosexuality.  The State Department pledged the United States’ support as “an outspoken defender of human rights” for all people.
  • Also on Wednesday, Attorney General Eric Holder indicated that of the approximately 245 detainees being held at Guantanamo Bay, some are expected to be tried in U.S. federal court. He also said that some of the detainees who have been cleared of wrongdoing may be released into the United States.
  • On Thursday, March 19, the Senate confirmed Elena Kagan as U.S. Solicitor General by a 61–31 vote.  Kagan was sworn in as the first woman SG the following day, and on Monday she was formally presented to the Supreme Court. Meanwhile, OLC nominee Dawn Johnsen earned the Senate Judiciary Committee’s approval.
  • Also on Thursday, AG Eric Holder, acting pursuant to one of President Obama’s first memoranda, issued new Freedom of Information Act guidelines. In a memo released in connection with the guidelines, Holder stated that although there should be a “presumptionin favor of openness, “the disclosure obligation . . . is not absolute.”
  • On Thursday President Barack Obama nominated fellow Harvard Law alum Scott Blake Harris to be General Counsel at the Department of Energy.
  • The White House is planning to declassify and make public three 2005 memos detailing “enhanced” interrogation techniques, approved by the Bush administration, for use against “high value” detainees. An Obama official, speaking on condition of anonymity, described the memos as “ugly.” The announcement comes on the heels of revelations in the New York Review of Books of grisly accounts of torture excerpted from a secret 2007 Red Cross report.
  • (more…)