Posts Tagged ‘OLC’

Three Takes on the OLC Torture Memos

April 21, 2009

Take One

Let’s do a thought experiment. Imagine an adversary of the United States has captured one of our soldiers. Imagine that our enemy keeps this soldier awake for over 48 hours “standing and . . . handcuffed, [with] the handcuffs . . . attached by a length of chain to the ceiling. The detainee’s hands are shackled in front of his body, so that the detainee has approximately a two- to three-foot diameter of movement. The detainee’s feet are shackled to a bolt in the floor.”

Imagine now that adversary captures one of our sailors. While in captivity, the sailor “is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e., the perception of drowning.”

Here’s my question: Do you think these service people have been tortured? Did it take you more than a nanosecond to answer that question?

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The Hollow Men

March 3, 2009

For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”

Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.

First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)

Confirmation Hearings Set for Two Key Justice Department Officials

February 18, 2009

On Tuesday, February 25 at 2 p.m., the Senate Judiciary Committee is schedule to convene confirmation hearings for Dawn Johnsen slated as head of the Office of Legal Counsel and for David Kris to be head of the National Security Division. OLC is the epicenter for legal interpretations regarding surveillance, interrogation and detention, while NSD is operations central for law enforcement efforts to defeat terrorism within the United States. Both the legal interpretations and the operational policies of the Bush Administration came under enormous criticism, and a central theme of the hearings is certain to be trying to pin down each nominee on how much the Obama administration will differ from the approaches taken under President Bush. Copies of Professor Johnsen’s and Mr. Kris’ responses to the Committees questionnaire have been posted on the Committee website, here and here along with letters the Committee has received in support of each nominee.