Weekly Web Watch (5/12-5/19)


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.”

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