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January 05, 2009


And I loved him in Miami Vice...

The GOP is scalp hunting, they may miss Holder and get her. We'll see, I guess.

A final example: Common Article 3 of the Geneva Conventions goes far beyond torture and prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." At the time of the Torture Opinion's issuance, violations of Common Article 3 were punishable war crimes under federal law."

Well, it's purty clear t' me those Genever fellers never saw "24," or faced th' threat of a tur'rist attack by swarthy villains wantin' t' distroy 'mocracy.

Thanks, Hilzoy; this is heartening.

Another little hopeful bit of news to hold on to in a sea of bleak events (the assault on Gaza and coal-waste inundation in TN, to name but two).

"Like many people, I had never heard of the Office of Legal Counsel before the Bush Administration...."

Some of us well-remember when William Rehnquist held the job for Richard Nixon 1969-71, and ruled on such matters as the legality of the invasion of Cambodia.

Like just about everything in the W. Bush administration, abuse of OLC started under Richard Nixon:

B. Rehnquist in the Office of Legal Counsel

Following his clerkship, Rehnquist next encountered the separation of powers with his appointment as Assistant Attorney General for the Office of Legal Counsel (OLC) in the Justice Department. (34) During his tenure there, Rehnquist handled several matters implicating core questions of the separation of powers. Before turning to that advice, we consider Rehnquist's conception of the role OLC played within the executive branch, as that conception itself gives us some insight into Rehnquist's understanding of the separation of powers.

1. OLC's role as an institution

At the time Rehnquist headed it, OLC was responsible for preparing the Attorney General's formal opinions, giving legal opinions to executive branch agencies and assisting the Attorney General in advising the President. (35) In the discharge of these duties, Rehnquist rejected a "European Ministry of Justice" model for the Justice Department, in which it would act as a disinterested office within the executive, exercising its own discretion independent of the administration's policy objectives. (36) Instead, Rehnquist defended the position that the Justice Department "is but one of several instrumentalities engaged in the process of administering justice." (37) That is not to say that Rehnquist countenanced the assertion of any position at all. The Department's position had to be...

I don't know if this link to the full piece via my library will work for anyone else, but it's here, and oh look who one of the two authors is -- it all comes around, as I said:
Bybee, Jay S.1,2
Samahon, Tuan N.3
Stanford Law Review; Apr2006, Vol. 58 Issue 6, p1735-1762, 28p
Bruce Shapiro, it turns out, wrote about the connection in 2004, something I only just noticed, in "Rehnquist, Cambodia & Abu Ghraib."

Extra bonus: she used to be general counsel at NARAL, I think. ;)

Shapiro's piece begins:

It is April of 1970. President Richard Nixon, frustrated with the Vietnam War, orders tens of thousands of US and South Vietnamese troops to invade neutral Cambodia. He launches his new war--and widens his bombing campaign--without consulting an outraged Congress. Demonstrations engulf campuses and cities. Aides to National Security Adviser Henry Kissinger quit in protest. And at the Justice Department, an assistant attorney general named William Rehnquist, in charge of the Office of Legal Counsel, makes a case for the legality of Nixon's new war in a white paper, "The President and the War Power."

It is half a lifetime from that spring to this one, and half a world from Cambodia to Iraq. The historical chasm abruptly collapsed, though, with the release of the memo on torture written for the White House in August 2002 by Assistant Attorney General Jay Bybee, Rehnquist's latter-day successor at the Office of Legal Counsel. What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration's interrogation policy.

We can't escape Nixonland.


[...] t is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion: "By crossing the Cambodian border to attack sanctuaries used by the the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the "necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was "necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to "something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to "the sort of tactical decision traditionally confided to the commander in chief."

And the legal opinion came from OLC.

Oh, yes, and this one last quote:

[...] The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

We can't escape Nixonland.

I read that in October and was stunned at how many of Nixon's tactics are part and parcel of the GOP's election strategy today, especially heavy reliance on hating the other.

And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

What I really don't understand about all this is why? Do they really think it's a good thing for the President to have to powers of a tyrant? And these are "conservatives" who profess to be horrified at the thought of "I'm from the government and I'm here to help."?? I guess they prefer "I'm from the government and I'm here to destroy your life."

"What I really don't understand about all this is why? Do they really think it's a good thing for the President to have to powers of a tyrant?"

My answer is that it's entirely simple: these were the guys in charge under Richard Nixon, who learned the game and the rules and What Should Be, under Richard Nixon.

So, yes, when their boss, and they, are in charge, the president should have the powers of a tyrant over the wimpy and probably oppositional Congress.

"When the president does it, it isn't illegal."

It was all right there. And these are Nixon's Men.

And they were still in charge under Gerald Ford, and again in charge under Ronald Reagan, and under George H. W. Bush, and again under George W. Bush. For their adult lifetimes, they, and their executive Republicans have Been In Charge most of the time; the exceptions were abberations that should never have happened, in their view.


That's the natural order of things as they see it, so, yes, the President, who should be a Republican, who will appoint them, and their heirs (employees below them in the past eight years), should be a tyrant with the trappings of democracy.

From the sidebar of my blog since 2002:

"Augustus was sensible that mankind is governed by names; nor was he deceived in his expectation, that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedom."
-- Edward Gibbon

Bybee should be impeached.

It's not enough just for his successor to be committed to the rule of law and a less authoritarian concept of the OLC. That's nice, but is no structural solution.

Bybee, and Rehnquist before him, perverted the OLC to serve an elected-dictatorship model of the U.S. presidency. They should pay for their actions. Instead, they've been elevated to the highest courts. That has to stop, and Bybee needs to be stripped of a position for which he has shown he is not qualified.

Unlimited executive power "legalized" by get-out-of-jail-free OLC opinions is not a policy difference: it is a criminal perversion of the U.S. constitution.

"...the President, who should be a Republican...."

In fairness, that's the "right sort" of Republican. It's not as if they'd be pleased with President Susan Collins, or as if President Colin Powell, or President Lincoln Chafee, would be satisfactory.

Now, President Sarah Palin, on the other paw....

In case anyone is unaware, Nell is referring to the fact that Jay Bybee is currently on the United States Court of Appeals for the Ninth Circuit.

That's the natural order of things as they see it, so, yes, the President, who should be a Republican, who will appoint them, and their heirs (employees below them in the past eight years), should be a tyrant with the trappings of democracy.

Judging by some of the...noisier...lights on the Right, they've succeeded in passing on this ideological poison to a new generation...

And Bybee offered these infamous words:

[...] Among other things, the memo concluded that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." It also concluded that for purely mental pain to constitute torture it "must result in significant psychological harm of significant duration, e.g., lasting for months or even years."
In case it isn't clear, I couldn't agree more strongly with Nell.

Johnsen's article can be found in a nicely readable PDF form here:


Just click the little PDF icon to the right of the title.

"Johnsen appears to believe not just that the torture memos were badly argued, but that many of the interrogation practices they licensed are in fact illegal . . ."

So, I guess we can rightfully anticipate the appropriate prosecutions to begin soon after Jan. 20.

And if not, why?


OLC's key function is to restrain the executive; frankly, in the current administration, I don't expect that to be as vital.

The appointment that really excites me is Kagan. I think it's fairly clear that she's being groomed for the first SCOTUS vacancy. That's probably going to be Ruth Bader Ginsburg, and her replacement will have to be a woman. The problem with Kagan is that her nomination to the DC Circuit got blocked during a spat between the GOP and Clinton, and she's never even argued a case before the Supreme Court.

Generally, nominees need experience on the federal bench. Working as Solicitor General is the other accepted path. It's not without awkwardness, as it requires a lot of recusals in the first few years of the appointment. But with SCOTUS, you play for the long term. And we can't do much better than Kagan.

Greenwald is also very positive about the Johnsen appointment and cites a couple of her blog [yeah!] postings over at Slate that are extremely encouraging regarding both torture and executive power abuses.

More on Dawn Johnsen.

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