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.
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