EXECUTIVE WATCH

In a week that saw surprising announcements from President Barack Obama that photos of detainees abuse would remain concealed and that military commissions would be revived, freshman Rep. Tom Perriello (D-VA) strikes a chord with many on the Left, saying: “The difference between the last administration and this one is the difference between night and dawn. But we’re looking for day.” A New York Times news analysis by David Sanger sees the developments as part of a trend of Obama leading by second thought while an editorial from the paper says that Obama is running the risk “of missing the chance to make sure the misdeeds and horrors of the Bush years are never repeated.” The Weekly Standard responds by arguing that the New York Times “misunderstands the entire nature of the war al Qaeda and its allies are waging on Western Civilization.”

President Barack Obama’s decision to revive and retool military commissions for approximately 20 detainees being held in Guantanamo Bay enraged rights advocacy organizations such as the ACLU as well as liberal commentators like Glenn Greenwald.  Writing for Salon, the ACLU’s Denny LeBoeuf captures the Left’s frustration, noting that the commissions are irredeemably flawed since they permit so many evidentiary “shortcuts” like confessions extracted by torture and cannot measure up to a legitimate system of justice refined over 200 years. Meanwhile, the Wall Street Journal heaps praise on Obama for recognizing that “civilian courts are largely unsuited for the realities of the war on terror” and the National Review’s Rich Lowry says the move vindicates the worldview of former Vice President Dick Cheney. Executive Watch guest contributor Scott L. Silliman and the Atlantic Monthly’s Andrew Sullivan take a middle course, contending that Obama is striking the right balance by removing the worst procedural flaws of the Bush-era commissions while still recognizing that Al-Qaeda detainees are better thought of as combatants than criminals. Opinio Juris’s Julian Ku reminds readers that Obama’s assistant Solicitor General Neal Katyal successfully challenged President Bush’s military commissions in Hamdan v. Rumsfeld as illegal under the Uniform Code of Military Justice and the Geneva Conventions; Ku is anxious to see Katyal’s justification for reviving the commissions. The Atlantic Monthly’s Marc Ambinder says that America’s allies are skeptical of the commissions’ validity. Although many liberals were quick to say Obama was breaking a campaign pledge and many conservatives such as the National Review’s Andrew McCarthy were eager to call Obama disingenuous, CQ Politics’ David Nather makes the important observation that Obama carefully chose his words on the campaign trail and never condemned the idea of commissions outright.

In other Guantanomo-related news, Obsidian Wings’ Hilzoy responds (parts 1 and 2) to Newt Gingrich’s recent ruminations about the troubling consequences of releasing 17 Chinese Muslim Uighurs on U.S. soil by making clear that they were not trained by al-Qaeda and that there is no evidence that they even harbor ill will against America. Lakhdar Boumediene, a former Guantanamo detainee who successfully challenged a portion of the 2006 Military Commissions Act, has arrived in France where he will face terrorism-related charges.

President Obama’s refusal to release photos of detainee abuse (reversing an earlier determination) in relation to an ACLU lawsuit also sparked a firestorm of controversy. The Washington Post’s David Ignatius says that it is an act of political opportunism and distancing from the Left, Obama’s “Sister Soulja” moment. The ACLU charges Obama with adopting “the stonewalling tactics and opaque policies” of his predecessor and says the country must acknowledge the crimes of the past if it wants to move forward. Obama justified his decision by noting that release of the photos would not enhance our understanding of the acts carried out by a small number of individuals, but would inflame anti-American sentiment and “have a chilling effect on future investigations of detainee abuse.” Reason’s Matt Welch and the Washington Independent’s Spencer Ackerman find Obama’s justifications wanting, if not absurd – the former because the release of the Abu Ghraib photos did add to the gravity of the horrendous acts and the latter because only torturers would be chilled. Anonymous Liberal says it’s contradictory for conservatives to steadfastly defend torture, but then admit releasing photos of such acts would “radicalize the Muslim world or help al Qaeda recruit.” Commentary Magazine’s Jennifer Rubin applauds Obama’s decision and says that it reveals he listens to the soundest reasoning, not the best campaign rhetoric. University of Chicago Law professor Geoffrey Stone writes in the Huffington Post, however, that Obama’s decision deprives the United States of a public debate that should be “at the very core of our self-governing society.” Empty Wheel also argues that it violates Obama’s new Freedom of Information Act guidelines. The New Republic’s Jason Zengerle and True Slant’s Ryan Sager examine the same social scientific evidence about jurors’ responses to gruesome evidence and reach opposite conclusions about the photo’s release – Zengerle suggesting that it might inflame violence against American troops and Sager noting that it would motivate citizens to punish torturers. Finally, Foreign Policy’s Tom Ricks says that Obama has gotten rolled by his generals, while his Foreign Policy colleague, Peter Fever says it’s just as likely that Obama is “getting informed” by his generals and making sound decisions in light of their advice.

The Senate Judiciary Committee, under the leadership of Chairman Patrick Leahy (D-VT), held hearings on torture. Talking Points Memo’s Zachary Roth has an excellent roundup of the major news emerging from the hearings. The Project on Government Secrecy reports on former State Department Phillip Zelikow’s testimony, where he noted that he had authored a memo advancing a stricter standard for torture’s legality and was thwarted by other Administration officials in 2006. He also accused Administration officials of attempting to destroy all copies of the memo, but revealed that a copy had finally turned up. The Weekly Standard’s Thomas Joscelyn spotlights and refutes other statements by Zelikow such as his claim that many detainees “do not show large signs of future dangerousness.” ThinkProgress writes about the testimony of another key witness, FBI interrogator Ali Zoufan, who reiterated that Abu Zubaydah revealed useful information under standard interrogation techniques and said that President Bush had been told (and repeated) “half-truths” about his interrogation. ThinkProgress also notes that federal judge Jay Bybee specifically declined Patrick Leahy’s invitation to address the commission.  Concerning the broader topic of legal advice on torture, the American Constitution Society’s Harold Bruff lays out the case that Bush Administration lawyers betrayed their oaths to the Constitution and to their profession. Writing in the Wall Street Journal, the former chief counsel for the Senate Intelligence Committee Victoria Toensing refutes this view, arguing that the critics of the torture memos still haven’t read them and that the lawyers were merely providing their best advice on methods the CIA wished to use. The Atlantic Monthly’s Marc Ambinder reports that the Obama Administration is growing wearier of a Truth Commission, fearing that it will paralyze the ability of the nation’s spy services to execute their tasks.

The National Review’s Andrew McCarthy wants the president to release information about the intelligence that the interrogation tactics yielded, so that Americans can make their own judgments on their efficacy. Harper’s Scott Horton laments the death of Ibn al-Sheikh al-Libi, who he contended provided the perfect rebuttal to those such as McCarthy since al-Libi fabricated a story about al-Qaeda and Iraqi links when subjected to torture by the CIA. Talking Points Memo publishes a statement written by former Secretary of State Colin Powell’s chief of staff, Col. Lawrence B. Wilkerson, who gives credence to Horton’s argument by asserting that torture was accelerated by former Vice President Dick Cheney in order to establish a link between al-Qaeda and Iraq before the war. The Weekly Standard’s Thomas Joscelyn undercuts Wilkerson, however, by pointing out flaws in his timeline of events. Hoping to broaden the torture debate, VetVoice’s Matthew Alexander makes a powerful statement that torture tarnishes America’s image and makes the country less safe.

Observers continued to speculate about Obama’s pick to replace David Souter on the Supreme Court. Surveying recent history, CQ Politics says that if Obama wants a vote before the August recess, then he should announce a selection soon. Marc Ambinder provides sound advice, calling on readers to produce their own shortlist by answering a set of questions, rather than listen to commentators who are equally in the dark.

In other nomination commentary, ACS and Salon’s Glenn Greenwald voice disillusionment with the Senate and Democratic leadership for seemingly endless delays on a vote for Dawn Johnsen’s confirmation to head the OLC.

In a sharply worded post, Glenn Greenwald also rebukes the Obama Administration for its alleged coercive tactics against the government of Great Britain attempting to prevent former detainee Binyam Mohamed from describing his alleged torture in a lawsuit.

Foreign Policy’s Laura Rozen details the backstory behind Secretary of Defense Robert Gates’ announcement that Gen. Stanley McChrystal would be replacing Gen. David McKiernan as the top U.S. Commander in Afghanistan. CQ Politics’ Jeff Stein notes that McChrystal has been credited by Gen. David Petraeus with leading a revolution in counterterrorism techniques and Foreign Policy’s Andrew Exum writes that McKiernan was replaced to “put the varsity team on the field.” The Atlantic Monthly’s Andrew Sullivan, however, finds the decision troubling since McChrystal is associated with one of the worst torture outfits in Iraq known as NAMA. Unqualified Offerings’ Neel Krishnaswami thinks that the detainee photos to be released would have shown horrors committed on McChrystal’s watch, prompting Obama’s change of heart. Politico reports on Cheney’s praise for Obama’s decision, heightening suspicion on the Left. Regardless of the inputs of the decision, Foreign Policy’s Peter Feaver writes that the clock is ticking on Obama and McChrystal in Afghanistan since the public’s patience will soon give way.

National Guard Lt. Daniel Choi was discharged for coming out of the closet as a gay man and authored an impassioned letter standing up for his identity and begging not to be fired. Matthew Yglesias, writing in the Daily Beast, condemns the president for allowing the enforcement of the military’s Don’t Ask Don’t Tell policy simply because he “doesn’t feel like doing anything about it,” a sentiment echoed by Andrew Sullivan in the aptly-titled post “The Fierce Urgency of Whenever.” Foreign Policy’s Stephen Walt makes the realist case against Don’t Ask Don’t Tell. Writing in the New Republic, Nathaniel Frank contends that Obama has the power to avoid a political maelstrom by issuing an order repealing the policy, rather than seeking the blessing of Congress, since it is a Pentagon policy as well as a federal statute.

Executive Watch’s William Marshall takes stock of the Obama Administration’s position on executive power vis-à-vis the states concerning regulatory enforcement and makes the case for greater leeway for state experimentation.