EXECUTIVE WATCH

Karl Rove

A judge granted the habeas corpus petition of Guantanamo’s youngest detainee, Mohammed Jawad.  The government admitted that it could no longer defend his military detention.  However, the ruling gives the government until Aug. 21 in order to allow the Department of Justice to decide whether Jawad should be tried in civilian court for allegedly throwing a hand grenade, injuring two American servicemen and an Afghani translator.  Jacob Sullum reminds readers that this is not the end of proceedings for Jawad.  If he is charged and acquitted in civilian court, Jawad could be placed in “prolonged detention” until he succeeds in another habeas proceeding.  Liza Goiten suggests that those designated enemy combatants will never be found “not guilty.”  Scott Horton reminds readers of the treatment to which Jawad was subjected, including death threats and sleep deprivation.  And Glenn Greenwald remembers that the order for Jawad’s release would not have been possible except for the Boumediene ruling.

Another detainee, Khaled Al-Mutairi, whose case has not engendered as much debate, was also ordered released.  And the Obama administration is looking to create a “courtroom-within-a-prison” complex in either Michigan or Kansas.

The Obama administration is proceeding with plans to aggressively pursue antitrust actions.  This reverses the Bush administration position, which sidelined the antitrust division except in cases where consumers were known to be harmed.  Early targets of investigation include airline companies, phone and cable providers, and Google.  Farhad Manjoo reviews the government’s antitrust case against Microsoft and cautions the DoJ against further tinkering with the relative power of software companies.

Retired NSA and CIA chief Michael Hayden took to the pages of the New York Times to defend the President’s Surveillance Program after the release of the inspectors general report.  Hayden noted that Congress was made aware of all activities, that the DoJ signed off on the program, and that, while it is hard to determine the exact amount of useful intelligence procured, the program was valuable to the intelligence community.  Spencer Ackerman accuses the former spy chief of “having fun with adjectives,” rather than addressing the concerns of the report.

CIA director Leon Panetta pens an op-ed for the Washington Post in which he expresses hope that Congress will look to the future with him rather than continue pointing fingers over the CIA’s secret assassination program that the agency concealed for seven years.

Karl Rove (pictured above) stepped in front of the House Judiciary Committee in a closed session to answer questions about his role in the firings of nine U.S. Attorneys in 2006.  He then gave interviews to the New York Times and Washington Post.  Rove admitted that he had passed on complaints about New Mexico’s fired David Iglesias and that he had campaigned for a job for his aide Tim Griffin but, his attorney stressed, Rove’s “answers should put to rest any suspicion that he acted improperly.”  Zachary Roth reminds readers that there is a special prosecutor involved and that the story is “a long way from over.”

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A New York Times’ lead editorial criticizes Obama for hewing “a bit too close[ly] … to the Bush team’s benighted ideas” of executive power.

In the New York Review of Books, Mark Danner enumerates the torture techniques used against 14 detainees held in CIA custody as verified by the International Committee of the Red Cross. The National Review’s Rich Lowry and the ACLU are in rare agreement, characterizing the details as disturbing.  Writing in Slate, torture historian Darius Rejali traces the “long and sadistic” genealogy of the techniques.  Balkinization’s Brian Tamanaha says that any notion that the U.S. did not torture can now only be called hypocrisy and doublespeak. In a pending lawsuit initiated by the ACLU, the CIA this week disclosed that it is withholding 3,000 documents pertaining to the 92 interrogation videotapes that the agency had destroyed.

Propublica argues that the Obama Administration’s decision to no longer use “enemy combatants” is little more than a change in terminology, but still an improvement over the Bush Administration.  The National Review’s Andy McCarthy agrees that the differences are minimal now, but worries that Obama is “rolling the dice that an American president can submit to the authority of foreign, international, and American courts while maintaining national security.”  Balkinization’s Rick Pildes says the decision is part of a larger triumph of pragmatism over ideology in the Obama Administration.

Debate over Obama’s first signing statement has spilled into this week. Executive Watch’s Neil Kinkopf takes aim at Eric Posner’s declaration that signing statements have “no practical effect” and that the Bush Administration’s theory of executive power is comparable to its predecessors.  Orin Kerr seeks a middle ground position between Kinkopf and Posner (Kerr’s Volokh Conspiracy co-blogger).  Cato’s Gene Healy and Kinkopf evaluate the validity of the standard liberal and conservative critiques of Obama’s signing statement.  Meanwhile, Charlie Savage writes about Senator Chuck Grassley’s (R-IA) disdain for the statement, stemming from Grassley’s belief that a provision will chill whistleblowers from reporting fraud and abuse.

The U.S. Senate confirmed former Dean of Harvard Law School Elena Kagan as solicitor general on a 61-31 vote, making her the first woman to ever hold the job. Meanwhile, Obama’s pick to head the Department’s Office of Legal Counsel, Dawn Johnsen, moved one step closer after surviving an 11-7 vote from the Senate Judiciary Committee.  Slate’s Dahlia Lithwick issues a scathing critique of Republican opposition to Kagan and Johnsen, quipping that “[y]ou need to pedal your intellectual bike hard and fast just to get past the hypocrisy of the sudden rule changes.” National Review’s Ed Whelan issues a comprehensive rebuttal to Lithwick.

BLT has the details on President Obama’s first nominee to the federal bench, Judge David Hamilton, and also reports on the Administration’s decision to bring the American Bar Association back into the vetting process.   Volokh Conspiracy calls the move unsurprising and accuses the ABA of left-wing bias.  Many in the mainstream media have been quick to point out Hamilton’s bipartisan support. Conservative Quin Hillyer gives general advice to Obama in picking nominees and calls for humility.

Scotusblog explores the options available to counsel for the 17 Chinese Uighurs held in Guantanamo Bay.  The Associated Press reports on Attorney General Eric Holder’s statement that they may be released on American soil. The Weekly Standard asserts that the Uighurs pose a serious threat to national security and argues that executive acquiescence in their release would be a mistake.

The looming release of a Department of Justice Office of Professional Responsibility report on John Yoo’s legal advice has prompted some UC-Berkeley leaders to consider punishing Yoo. Harvard professor Alan Dershowitz labels the calls for punishment “a left-wing version of McCarthyism.” Harper’s Scott Horton says Dershowitz’s statement is “absurd” and hypocritical, adding that Yoo’s work failed to meet basic standards of professional competence.

Jurist’s Ximena Marinero examines the importance of President Obama’s decision to join 66 other countries in signing a statement calling for the decriminalization of homosexuality.   Jonah Goldberg wonders why this is not tantamount to imposing Western values.

In lighter news, The Atlantic Monthly reports on the politics behind President Obama’s controversial decision to pick the University of North Carolina to win the men’s college basketball national championship. The move irked Duke University coach Mike Krzyzewski, who retorted that “the economy is something that he should focus on, probably more than the brackets.” Obama later justified his selections, noting that he did not believe Duke had the “inside presence” to win a championship, but said he looks forward to Krzyzewski demonstrating otherwise.

What others are saying about executive power

The New York Times reports on the Obama Administration’s position that detainees at the Bagram Air Force base in Afghanistan cannot challenge their detentions. Salon’s Joan Walsh captures the disappointment on the Left. 

Both the New Republic and the Washington Post have reported that Yale Law professor Harold Koh will be Hillary Clinton’s go-to counsel at the State Department. Koh is an outspoken international human rights advocate who, in 2002, declared that a unilateral preemptive war with Iraq would violate international law.

Charlie Savage recaps the ways the Obama Administration has hedged on its pledges to scale back expansive executive power. Eli Lake makes a similar point in the New Republic.

The National Review applauds the D.C. Circuit Court of Appeals’ reversal of an order to release 17 Uighur detainees in the United States, but expresses concern that the Supreme Court may see things differently.

Salon’s Jon Conason wants a presidential commission to investigate authorizations of torture during the Bush Administration, but also argues that there should be no criminal investigations and that cooperative officials should be guaranteed a complete pardon.  Conason’s Salon colleague, Glenn Greenwald, responds that such preemptive pardons would constitute an “unambiguous and blatant violation of our obligations under the Convention [Against Torture]” and demands greater accountability.

The Weekly Standard is troubled by Thomas Joscelyn’s ties to Al-Qaeda.  Joscelyn is expected to be the first Guantanamo detainee released or transferred by the Obama Administration.

Noah Feldman offers up a defense of executive secrecy in the New York Times magazine. The New Republic calls it too clever by half.

Darrell Issa, the ranking Republican member on the House Oversight Committee, has called on the White House to establish a framework for archiving White House e-mails.  Think Progress calls the move hypocritical in light of positions Issa took during the Bush Administration.

Politico highlights important gaps in White House record-keeping, casting doubt on Obama’s commitment to transparency.

The National Review quotes Montesquieu: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”  The post addresses Congress’s eagerness in granting Obama sweeping spending discretion in the proposed housing bill.  Matthew Yglesias spots the irony of the publication not raising similar concerns about foreign policy.