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.

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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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At Salon and the Daily Beast, bloggers, activists, writers, and economists grade President Obama’s first 100 days. Columbia University historian Alan Brinkley says that Obama’s first 100 days may have been more productive than FDR’s . Slate offers the most youth-friendly recap of Obama’s term. The New York Times recaps and assesses Hillary Clinton’s first 100 days as Secretary of State.

Five writers at the New Republic speculate what “fresh hell awaits” Obama in the next 100 days. The Atlantic Monthly’s Marc Ambinder also takes a stab at the issues likely to define the near future.

The announcement of Justice David Souter’s retirement fueled commentary about who Obama will pick as a replacement. The Volokh Conspiracy’s Jonathan Adler challenges the conventional wisdom that Justice Souter’s retirement won’t change the ideological balance of the Court.

Washington Post columnist Charles Krauthammer defends torture as a necessary evil in a post 9/11 world only to see his colleague, Dan Froomkin, dissect and refute each of his assertions.

Foreign Policy asks experts to grade President Obama’s first 100 days, while the New York Times gets the take of prominent historians.

The released torture memos continued to fuel heated debate. Slate’s John Dickerson has a torture commentary roundup and Foreign Policy has a torture timeline.

Executive Watch’s Christopher Schroeder highlights the most salient features of the memos, while Peter Shane says, as a former OLC official, they make him want to vomit. Former President Bush speechwriter Marc Thiessen marshals evidence from the memos themselves to argue that the interrogation techniques foiled terrorist plots and yielded invaluable information on Al-Qaeda. Slate’s Timothy Noah points out, though, that the narrative of Bush apologists is riddled with internal contradictions. Former FBI interrogator Ali Soufan speaks out to say that high-profile suspect Abu Zubaydah provided useful, reliable information only before being waterboarded. Torture opponent Greg Sargent fears that focusing on whether torture yields useful information shifts the terms of the debate away from the significant moral and strategic consequences. The New Republic’s Michael Crowley, however, says opponents should welcome the discussion since it will either repudiate the sole justification for torture or show it works in limited circumstances and is not worth the accompanying costs. After sending mixed signals, Obama spokesman Robert Gibbs says that an independent torture commission is not necessary and that the current inquiry by the Senate Intelligence Committee is proper and sufficient.

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.”