EXECUTIVE WATCH

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.