Stepping back from an American-Iraqi security agreement, a top American general in Iraq says that 20 percent of American troops will remain in major Iraqi cities after June 30.
Politifact has a nifty feature that tracks the status of Obama’s campaign promises and Propublica has a Bailout Project that allows users to track where bailout money is being spent.
Salon compiles its stories on torture over the years and arranges them by theme, providing background information on the emerging developments and heated debates surrounding the topic.
The New York Times’ David Johnston and Scott Shane report on an internal Department of Justice memo that concludes Bush Administration lawyers committed grave errors of judgment in authorizing torture, but should not be prosecuted. The final report is likely to call on state bar associations to consider disciplinary actions such as disbarment against certain officials. Hilzoy of Obsidian Wings likes the approach since “total ineptitude” may not be an indictable offense, but at least a reason to stop someone from practicing. ABC News’ Jan Crawford Greenburg points out that DOJ’s lengthy multi-year investigation may preclude disciplinary action by state bar associations.
Writing for the Weekly Standard, Tod Lindberg sees the whole idea of disciplining officials associated with torture as flawed because they acted in good faith and in exceptional circumstances. Jurist’s Jeffrey Addicott reaches the same conclusion through different reasoning, declaring that discipline is unwarranted since the authorized techniques did not contravene international legal standards. Also at Jurist, Jordan Paust refutes Addicott’s premise that the U.S. did not violate international treaties and believes that even Bush Administration cabinet officials should be held legally accountable for signing off on torture policies. Taking a similar line, Balkinization’s Brian Tamanaha thinks that a failure to prosecute OLC officials sets a dangerous precedent for immunizing high government officials who conspire to violate U.S. law. John Bolton is worried by President Obama’s apparent acquiescence with Spanish torture investigations and enumerates the reasons why they are misguided. Harper’s Scott Horton issues a point-by-point rebuttal of Bolton’s reasoning.
Jonathan Chait of the New Republic points out the hypocrisy of Republican lawmakers and commentators who stressed the primacy of the “rule of law” in pushing for an indictment of President Clinton after he left office, but, today, balk at the idea of torture prosecutions. The National Review’s Andrew McCarthy spots hypocrisy in the Obama Administration’s position on torture, noting that the current DOJ has adopted the same narrow reading of specific intent in the U.S. torture statute as Bush’s OLC did. Opinio Juris’s Kevin Jon Heller and Deborah Pearlstein think that McCarthy fails to grasp important differences in the two administrations’ positions, while Julian Ku thinks he is basically correct. Also on the hypocrisy front, Propublica indicts psychologists who warned the Senate Armed Services committee in 2002 that torture could be ineffective and dangerous and then proceeded to help the government craft torture techniques.
The New York Times editorial board laments that the voices of those tortured have been excluded from the debate by the government’s refusal to grant a Freedom of Information Act request by the ACLU and by a gag order placed on the Guantanamo detainees’ counsel. Propublica fears that the view of detainees could be forever lost as the government could destroy hundreds of documents related to the prisoners’ habeas corpus lawsuits under a 2004 court order. Writing in the Daily Beast, John Sifton addresses the popular silence about the roughly 100 detainees who have died in U.S. custody, including some who were tortured to death.
The Weekly Standard’s Michael Goldfarb gives voice to growing anxiety about holding Guantanamo detainees in U.S. prisons and says that al Qaeda detainees pose a far more serious threat to American citizens than German prisoners of war housed domestically during World War II. Conor Friedersdorf lampoons Goldfarb’s reasoning and says that he is still waiting for a well-reasoned opposition to detainees being held in maximum security prisons in the U.S.
CQ Politics reports that Attorney General Eric Holder has hedged on President Obama’s statement last week suggesting an impending, sweeping change to the administration’s position on the state secrets privilege, which it has invoked to shield the government from lawsuits related to counterterrorism. The New Republic’s Elizabeth Goitein says its time for the administration to redeem its early missteps with a show of restraint and a commitment to the rule of law. Robert Farley details an interesting, unforeseen consequence of the states secret privilege related to commercial disputes in military procurement.
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Obama, Pragmatism, and Retribution
May 7, 2009I would like to elaborate on the recent insightful post from Peter Shane, my beloved collaborator. Peter makes the observation that the Obama Administration has been characterized by ambivalence. In many respects, I think this is true. Indeed, it is not surprising given President Obama’s conscious decision to surround himself with a team of rivals.
In some instances, however, I think the term ambivalence inaptly describes the approach of the Obama Administration. In many instances, I believe it more accurate to describe the Obama Administration as pragmatic and moderate. One of Peter’s examples, signing statements, illustrates this point. It is true, as Peter writes, that President Obama issued a memorandum condemning the abuse of signing statements and then issued a number of his own. But the Obama memorandum did not take the absolutist position (advocated by the American Bar Association among others) that it is never appropriate to issue a signing statement. His memo rather takes a pragmatic middle position to the effect that it is sometimes appropriate to issue a signing statement, but the Bush Administration went too far.
This appears to be the approach the Obama Administration is taking with respect to the issue of what to do about the Bush Administration’s use of torture. The Obama Administration has taken a moderate position condemning the practice and foreswearing its use, but it has steadfastly resisted taking any retributive action against those involved in the Bush Administration’s torture regime. This has been in the news this week in connection with the stories about the forthcoming report of the Justice Department’s Office of Professional Responsibility on the rendering of legal advice relating to torture. It appears that the report will not recommend criminal prosecution of those involved in providing the (clearly erroneous) advice that waterboarding etc. is not torture.
In many ways this is unsatisfying. I regard the lawlessness of these memos and of the practice to be such as to cry out for condemnation. On the other hand, the criminal law does not appear to be well or justly adapted to this circumstance. It would be reasonable if (and at this point it remains speculative) the Obama Justice Department were to review the facts of the matter and determine that prosecutions are not warranted. Even if what Jay Bybee, John Yoo, Steven Bradbury, Alberto Gonzales, David Addington, and other architects of the torture regime did not act criminally, they did act reprehensibly. We in the lega profession should treat them as pariahs. They should be ashamed to appear in public, and we should shun them professionally.
Posted in Commentary, Executive Branch Power | 1 Comment »