- On Wednesday, February 25, the Senate Judiciary Committee conducted a nomination hearing for Dawn Johnsen, President Obama’s pick for OLC head. Johnsen reaffirmed the illegality of torture, professed her belief that the OLC furnish the President with “accurate, honest legal interpretations,” and indicated that the OLC should generally publish its opinions. The ACLU is calling on Johnsen to release Bush-era torture memos.
- On the same day, the Judiciary Committee questioned David Kris, Obama nominee for Assistant Attorney General for National Security. Kris expressed his opinion that the United States could detain enemy combatants without trial for the duration of a conflict, and vowed to “learn in detail” how FISA works.
- Also on February 25, Senator Patrick Leahy moved forward with plans to create a “truth commission” to investigate the alleged abuses of the Bush administration. A hearing, “Getting to the Truth Through a Nonpartisan Commission of Inquiry,” will be held March 4.
- In a similar vein, the Senate Intelligence Committee is preparing to investigate the CIA’s detention and interrogation programs under the Bush Administration. CIA chief Leon E. Panetta has indicated that he will cooperate.
- In a letter to President Obama, West Virginia Democratic Senator Robert Byrd criticized the President’s decision to appoint “czars” to oversee various policy areas, writing that such “rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances.”
- A few days after taking a day trip to Guantanamo Bay, Attorney General Eric Holder indicated that the controversial prison is “well-run now,” but that it would nonetheless be closed pursuant to President Obama’s executive order. Attorneys for Guantanamo detainees tell a different story; on February 26 they sent a letter to President Obama claiming that their clients continue to be mistreated.
Archive for March, 2009
Executive Action Report: 2/25/09 – 3/3/09
March 4, 2009Bush OLC Repudiates Its Own Opinions
March 2, 2009The Bush administration asserted notoriously aggressive and broad claims of presidential authority to violate acts of Congress when the President believed that doing so advanced the national security interests of the United States – and the Office of Legal Counsel in the Department of Justice was repeatedly the source of legal memoranda that purported to justify those claims. During the transition from the Bush to the Obama administrations, civil liberties groups and others called for the rapid repudiation of these memoranda, a good number of which remain classified and undisclosed. When Dawn Johnsen, slated to be the next head of OLC, testified before the Senate Judiciary Committee last week, she was questioned by several Democratic Senators who were interested in how quickly she was going to re-examine and repudiate these memoranda. Senator Whitehouse, for example, urged that Professor Johnsen quickly reconsider declassifying a number of these OLC opinions – which he has seen on a classified basis – because, he said, the reason they seemed to be classified was not due to a fear of revealing national security information, but instead out of a desire to “protect them from scrutiny because they were so badly done.” (more…)
Weekly Web Watch (2/23-3/01)
March 1, 2009The New Yorker’s Jane Mayer has the latest news surrounding the indictment of Ali Saleh Kahlah al-Marri. Mayer also has the must-read piece on Al-Marri in the latest New Yorker. The National Review’s Andy McCarthy sees upside in the Obama Administration’s decision, but also worries that national security secrets will be disclosed when the case goes to trial.
The Obama Administration will allow the media to photograph returning fallen soldiers, reversing a ban put in place under George H.W. Bush. Graeme Wood, writing in the New Republic, supports the move and urges Americans to do more to openly confront our grief.
CQ Politics examines Obama’s record on executive power and finds that most observers are cautiously optimistic.
Dawn Johnsen faced confirmation hearings to become the next head of the Department of Justice’s Office of Legal Counsel (OLC). The American Constitution Society thinks she received a glowing reception, while Slate’s Dahlia Lithwick sensed some hostility to her recent activism. The New Republic’s Jeffrey Rosen says conservative fears are misplaced and believes that she is even poised to defend John Yoo. Propublica is anxious to see whether Johnsen will release secret counter-terrorism OLC memos from the Bush Administration.
The Nation catalogues the various organizations working to make government more transparent and highlights the Bush-era policies that should be reconsidered.
Karl Rove yet again failed to appear for a deposition before the House Judiciary Committee investigating the firing of eight U.S. attorneys. On March 4, President Obama will have to present the administration’s position to the D.C. Circuit Court of Appeals as to whether Rove can invoke absolute executive privilege and continue to elude House lawmakers. The National Review frames the dilemma nicely: “If Obama backs the claim of privilege, he risks serious outrage and disappointment on the Left. If he does not, he cedes a significant amount of power, and his own decisions over the next four (or eight) years could be similarly dissected someday by his political enemies.”
Propublica has the story behind the sentencing this week of Kyle Foggo, the former No. 3 official at the CIA who defrauded the federal government. Some of the operations of the CIA’s top secret Special Activities Division (SAD), which oversees extraordinary renditions and enhanced interrogations, were “swept up in [the] fraud conspiracy.”
The Weekly Standard points to a study that finds Obama has made more unilateral executive moves than any other President at this stage in office. It, then, questions where the voices are of those who declared Bush an imperial president.
The Project on Government Secrecy writes approvingly of a D.C. District Court decision declaring that litigants have a First Amendment right to supply their counsel with classified information necessary to safeguard their interests.
The Senate Judiciary Committee and Intelligence Committee are set to investigate controversial Bush Administration policies such as torture and extraordinary rendition. The Weekly Standard thinks it’s a pretense to score political points and will compromise national security.
Congressional Quarterly’s Legal Beat has the details on the Ninth Circuit’s decision to deny a DOJ motion to stay a lower court’s order in a suit challenging the legality of former President Bush’s warrantless wiretapping program. Glenn Greenwald rebukes the Obama Administration for borrowing the Bush Administration’s legal reasoning.
Subscribe to RSS Feed
The Hollow Men
March 3, 2009For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”
Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.
First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)
Tags:bybee, commander-in-chief, OLC, president, unitary executive, yoo
Posted in Commander-in-Chief power, Commentary, Executive Branch Power | Leave a Comment »