Last week, I argued that opposition to torture was the reason why State Department Counsel nominee Harold Koh and Office of Legal Counsel nominee Dawn Johnsen had drawn the ire of the Republican smear machine. On the surface, Republican opposition to Koh was based on a fictional anecdote about Koh supporting "Sharia" in the United States, and Johnsen's opinions on abortion. Scott Horton reports that torture indeed has something to do with Republican opposition to Koh and Johnsen, but it's far more disturbing than a difference of opinion on interrogation policy and human rights. It seems Republicans are holding Obama's legal nominees up in order to prevent the release of Bush era memos regarding torture:
The Justice Department source confirms to me that [John] Brennan has consistently opposed making public the torture memos—and any other details about the operations of the extraordinary renditions program— but this source suggests that concern about the G.O.P.’s roadblock in the confirmation process is the principle reason that the memos were not released. Republican senators have expressed strong reservations about their promised exposure, expressing alarm that a critique of the memos by Justice’s ethics office (Office of Professional Responsibility) will also be released. “There was no ‘direct’ threat,” said the source, “but the message was communicated clearly—if the OLC and OPR memoranda are released to the public, there will be war.” This is understood as a threat to filibuster the nominations of Johnsen and Koh. Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama’s legal policy team.The conflict stems from a FOIA lawsuit filed by the ACLU. The Bush administration had a deadline to file a brief defending their decision not to release the memos in question. When the Obama administration took over, wanting to break with the previous administration, they struck a deal with the ACLU to extend the deadline so that the government would not have to file a brief, which would mean the memos wouldn't be released. Others have already pointed out that covering up criminality on the part of American agents isn't a good reason to obscure the memos.
The reason Brennan and others are so nervous is that the memos could reveal faulty legal reasoning on the part of the Bush administration's OLC lawyers. The administration struck another deal with the ACLU last week, offering to include a 2002 memo from Jay Bybee. The ACLU believes that the original memos in question, written in 2005 by Steven Bradury, are focused on retroactively arguing that interrogation methods outlined previously do not constitute "cruel and degrading" treatment, while the Bybee memo is focused on arguing that the interrogations outlined do not constitute torture as defined by the administration, which heightens the possibility that the memos could be seen as facilitating criminal behavior rather than establishing what is legal. If that's the case, they wouldn't provide the shield against prosecution they were intended to, which is why Brennan and others are so concerned. (I erroneously told Hilzoy last night that the administration was compelled by court order to release the memos, I got this case mixed up with another one involving the ACLU).
This is a question of justice, and a question of democracy. Obama has said before that no one is above the law. For the administration to disobey a court order to release these memos flies in the face of that assertion. The Republicans trying to prevent disclosure by blocking Obama's legal nominees have already shown their contempt for the idea that the law applies to everyone, that some rights are inviolable, and that the American people have a right to know what their government does in their name.
-- A. Serwer
