AG REPORT Tapped
Spencer Ackerman has an article out on recently released documents that give us the military's lawyer's view of U.S. interrogation policy:

The JAGs were commenting on the report of a Pentagon working group, convened in January 2003, to review interrogation policy changes. But a common theme in their memos is the concern that the legal rationales employed by the working group were imported wholesale from the Justice Department's Office of Legal Counsel (OLC)--whose writing on the question of torture was memorably described by Yale Law School Dean Harold Koh as "perhaps the most clearly legally erroneous opinion I have ever read." (What the Justice Department lawyers actually gave to the Defense Department remains, inexplicably, classified, despite months of congressional demands.)

Major General Thomas Romig, the Army JAG, essentially concurred. He denounced OLC's central contention--that any law restricting the president's ability to wage war is unconstitutional--writing caustically: "I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. ... This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide."

Brigadier General Kevin Sandkuhler, the Marine JAG, was more specific about how adopting OLC's argument would harm the military:

Spencer Ackerman has an article out on recently released documents that give us the military's lawyer's view of U.S. interrogation policy:

The JAGs were commenting on the report of a Pentagon working group, convened in January 2003, to review interrogation policy changes. But a common theme in their memos is the concern that the legal rationales employed by the working group were imported wholesale from the Justice Department's Office of Legal Counsel (OLC)--whose writing on the question of torture was memorably described by Yale Law School Dean Harold Koh as "perhaps the most clearly legally erroneous opinion I have ever read." (What the Justice Department lawyers actually gave to the Defense Department remains, inexplicably, classified, despite months of congressional demands.)

Major General Thomas Romig, the Army JAG, essentially concurred. He denounced OLC's central contention--that any law restricting the president's ability to wage war is unconstitutional--writing caustically: "I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. ... This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide."

Brigadier General Kevin Sandkuhler, the Marine JAG, was more specific about how adopting OLC's argument would harm the military: "Comprehensive protection is lacking for DOD personnel who may be tried by other nations and/or international bodies for violations of international law."

"U.S. Armed Forces are continuously trained to take the legal and moral 'high road' in the conduct of our military operations regardless of how others may operate," wrote the Air Force's deputy JAG, Major General Jack Rives. "Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful." Sandkuhler starkly warned about a breakdown in uniformed "pride, discipline and self-respect."

You can see the memos themselves here and Marty Lederman has further commentary on the subject.

Th "Comprehensive protection is lacking for DOD personnel who may be tried by other nations and/or international bodies for violations of international law."

"U.S. Armed Forces are continuously trained to take the legal and moral 'high road' in the conduct of our military operations regardless of how others may operate," wrote the Air Force's deputy JAG, Major General Jack Rives. "Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful." Sandkuhler starkly warned about a breakdown in uniformed "pride, discipline and self-respect."

You can see the memos themselves here and Marty Lederman has further commentary on the subject.

Th. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage--disbelief--that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. ...

Department of "Huh?" Brad DeLong
The U.S. government doesn't already offer protection to foreign diplomats in Iraq? Why not?
WSJ.com - U.S. May Offer Protection To Foreign Diplomats in Iraqe memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage--disbelief--that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. ...

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You don't suppose they're doing this for political reasons, do you?

Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don't have to abide by it -- just set up your own plan.

The Oregon Democrat isn't inviting opponents to defy the newly-enacted health care law. Instead, he's pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.

Speaking to the Huffington Post on Tuesday, Wyden discussed -- for one of the first times in public -- legislative language he authored which "allows a state to go out and do its own bill, including having no individual mandate."

It's called the "Empowering States to be Innovative" amendment. And it would, quite literally, give states the right to set up their own health care system -- with or without an individual mandate or, for that matter, with or without a public option -- provided that, as Wyden puts it, "they can meet the coverage requirements of the bill."

"Why don't you use the waiver provision to let you go set up your own plan?" the senator asked those who threaten health-care-related lawsuits. "Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?"

Jon Walker at FDL accuses Wyden of being disingenuous:

This is not accurate. You see, the problem is that the individual mandate starts in 2014, but states can’t get a waiver to try a different system, potentially one without an individual mandate, until 2017. So, there is nothing states can do to stop the individual mandate from being in effect for at least three years.

Whether you agree with an individual mandate or not, it is just wrong to say people shouldn’t complain because, at some point in the future, they might possibly have a way for states to opt out of it. If the state waiver started in 2014, Wyden’s argument would be perfectly valid, but as the law currently stands, his statement is pure baloney.

Wyden also seems to be glossing over the serious problem of system entrenchment. While it would be easy for a state to experiment with a new health care system in 2014 if they could get a waiver right away, trying to start a new system in 2017 would be much more difficult. The law requires them to put all the effort into setting up this exchange system. Expecting a state to start all over by uprooting this new system and putting up a whole different system after only three years is a huge hurdle.

Obviously, Wyden's provision wasn't meant to make it easy for states to opt out. But it does make it possible, and that's probably all it needs to do to meet any legal challenges.

As to motive? My guess is, they probably did it this way to hit their CBO targets.

If the Republicans were operating in good faith, it would be a lot simpler to consider reconciliation amendments like the one Jon suggests. Instead, they're doing what they do best: obstructing the process. No no no!

In a big "FU" to the Republican obstructionists in Congress, Barack Obama has re-submitted Dawn Johnsen to head the Office of Legal Counsel, after the GOP blocked her nomination late last year.

It should be noted that Johnsen has had glowing recommendations from both sides of the aisle for her legal acumen, but because she did work for a pro-choice group two decades ago, she was deemed "too liberal" to be acceptable for a Congressional vote:

The renomination of Johnsen-the Obama nominee who has waited the longest for a vote-is especially noteworthy. Currently a professor at Indiana University School of Law, Johnsen is extraordinarily well-qualified to head the Office of Legal Counsel. She served for more than five years in that office during the Clinton administration, including as its acting head for more than a year. She has the bipartisan support of both her home state senators and from former heads of OLC from both political parties. Senior officials from every administration since Gerald Ford's have endorsed her nomination.

"President Obama made an excellent choice in Professor Johnsen to lead OLC, and today he's shown his willingness to stand on principle and call the Republicans on their attack and delay tactics," said Marge Baker, Executive Vice President of People For the American Way. "President Obama's statement today is a refutation of the GOP's efforts to spin this eminently qualified nominee as a controversial choice, and he should be applauded. Professor Johnsen's legal scholarship, her integrity, her substantive knowledge, and her commitment to this nation's security and to the rule of law will serve this country well once she's confirmed."

To be fair, this is not strictly a GOP issue:

At least two Democrats — Ben Nelson of Nebraska and Arlen Specter of Pennsylvania — have also said they oppose her, and the Senate majority leader, Harry Reid of Nevada, did not give her a floor vote.

It's patently absurd that someone as eminently qualified as Johnsen should not get even the respect of being given a vote. John Yoo--the poster child for the phrase "the banality of evil"--has no problem with his nomination to the OLC, but Johnsen does?

In addition to Johnsen, Obama has re-submitted the nominations of five others whose original nominations were effectively killed by GOP obstructionism:

Mr. Obama will also renominate Christopher Schroeder to lead the Justice Department’s Office of Legal Policy and Mary Smith to lead its tax division; Craig Becker to be a National Labor Relations Board member; and Louis Butler Jr. and Edward Chen to be district court judges, the official said.

Not only is this illegal, it's immoral and just plain crazy. Keeping someone awake that long induces psychosis, and how does that give you useful information? Sounds like the Bush Administration was getting some kind of sick gratification from torturing people.

But of course, the Cowboy Administration was more interested in starring in their own action movie than in following our laws:

A year after the Bush administration abandoned its harshest interrogation methods, CIA operatives used severe sleep deprivation tactics against a terror detainee in late 2007, keeping him awake for six straight days with permission from government lawyers.

Interrogators kept the unidentified detainee awake by chaining him to the walls and floor of a cell, according to government officials and memos issued with an internal CIA report. The Obama administration released the internal report this week.

Though the detainee's name and critical details are blacked out in the memos, there is only one detainee known to have been in CIA custody at that time: Mohammed Rahim al-Afghani, an alleged al-Qaida operator and translator for Osama bin Laden.

The documents show that even as the Bush administration was scaling back its use of severe interrogation techniques, the CIA was still pushing the boundaries of what the administration's own legal counsel considered acceptable treatment.

The documents describe two instances in 2007 in which the CIA was allowed to exceed the guidelines set by Bush administration lawyers allowing prisoners to be kept awake for up to four days.

The first episode occurred in August 2007, when interrogators were given permission from the Office of Legal Counsel to keep an unidentified detainee awake for five days, a U.S. government official confirmed. The official spoke on condition of anonymity because he was not authorized to discuss the report's details.

According to the documents, the sleep-deprived prisoner was kept awake by being forced to stand with his arms chained above heart level. He wore diapers, allowing interrogators to keep him chained continuously without bathroom breaks.

The second incident occurred in November 2007. After again asking permission from Justice lawyers to keep a detainee awake an extra day, interrogators pressed to extend the treatment for another 24 hours, depriving the prisoner of sleep for six straight days.

It is unclear from the documents whether the two incidents involved the same detainee. CIA spokesman George Little would not provide the identity of the prisoner referred to in the document.

(Suzanne Ito writes for and manages Blog of Rights, the blog of the national ACLU.)

June 26 of this year marked the International Day in Support of Torture Victims, and the anniversary of the United Nations' Convention Against Torture. On that day, the ACLU joined countless other human rights groups in calling for Accountability for Torture. We asked people to send Attorney General Eric Holder the Office of Legal Counsel memos—the actual evidence released through ACLU lawsuits that revealed the fact that high-level Bush administration officials had sanctioned these illegal acts—and urged him to appoint a special prosecutor to investigate these crimes.

We were pleased when Newsweek's Daniel Klaidman reported that Holder was indeed considering an investigation. But now a month has passed, we haven't heard much from the Justice Department. So last week, the ACLU renewed its call for accountability by launching a new video, featuring director Oliver Stone, composer Philip Glass, Rosie Perez, and many others reading from the torture memos, and calling for accountability.

The public knows that detainees were tortured during the Bush presidency. From the photos from Abu Ghraib, to congressional reports (PDF), to the torture memos themselves, it's crystal-clear that these abusive interrogation practices were authorized by the highest levels of the Bush administration. Even Dick Cheney couldn't resist a little cheerleading about how effective he thought waterboarding was.

It is a core premise of American democracy that no one—not even the president—is above the law. When we hear Attorney General Holder is considering only investigating those who carried out the torture, not those who authorized the torture in the first place, it sickens us to think how this clashes with the most fundamental American ideals of fairness. Too much evidence of high-level orders exists to limit criminal investigations to "a few bad apples." We cannot compromise the rule of law because we're afraid the outcome might be politically messy, inconvenient or even painful. To not investigate is to tell future presidents and their administrations that they're above the law, and that would render our system of justice meaningless.

So please watch the video, and send it to Attorney General Holder. It's time for a comprehensive investigation of the Bush era torture policies.

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Phyllis and Del on their wedding day

Del Martin and Phyllis Lyon were issued a marriage license in 2004 when San Francisco Mayor Gavin Newsom ordered that same-sex couples could apply for them. Sadly, it was voided by the courts just a few months later. Phyllis implored the courts to reconsider:

Del is 83 years old and I am 79. After being together for more than 50 years, it is a terrible blow to have the rights and protections of marriage taken away from us. At our age, we do not have the luxury of time.

When the California Supreme Court did legalize gay marriage in June of 2008, Del and Phyllis were the very first gay couple married by Mayor Newsom.

Martin and Lyon had already been together for 55 years at the time of their marriage.

Del Martin died just two months later from complications from a bone fracture. Del was 87 years old and had been in failing health for some time. Because Del and Phyllis were legally married, when critical choices had to be made about Del's condition, Phyllis had the right to act in the best interests and wishes of her wife.

Unfortunately, there are now thousands and thousands of same sex couples in California who do not have that same right--one of the more than 1000 denied to them and which seems to get lost in the hysteria and just bizarre logic of those fighting against equal protection for all citizens.

There is now a site designed to help couples--both gay and straight--discuss the uncomfortable subject of end-of-life issues: Compassion & Choices:

Most Compassion & Choices supporters would eagerly bargain away a few days of extended life in an intensive care unit in exchange for final days spent at home, in relative comfort and meaningful communion with those they love. Such folks don’t adhere to the doctrine of redemptive suffering and would rather slip away peacefully if imminent dying would be otherwise prolonged and agonized.

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Perhaps he'll have time to modify his position after he's impeached:

WASHINGTON — Judge Jay S. Bybee broke his silence on Tuesday and defended the conclusions of legal memorandums he had signed as a Bush administration lawyer that allowed use of several coercive interrogation practices on suspected terrorists.

Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture.

[...] Until recently, Judge Bybee had been a largely unseen figure in the debate. In contrast, John Yoo, his deputy at the Office of Legal Counsel, who is generally believed to have been the memorandums’ principal author, has defended them regularly. But Judge Bybee has come under renewed attention. Some people have called for his impeachment, he is being investigated by the Justice Department on his professional standards, and he has even become estranged from friends.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

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Not content with its past role in screening candidates for positions in the Bush judiciary and Justice Department, the conservative Federalist Society is back to defend the Bush torture team it helped create. Ironically, the Federalists' conference call Monday came just three days after McClatchy reported that Steven Bradbury - one of its members and a figure at the center of the storm over the release of the OLC torture members - refuted their claim that the military's SERE training program proved the United States did not torture terror detainees.

As Politico reported, the National Review hosted a media conference call featuring many of the usual suspects among the Bush torture apologists:

The lawyers' group, which was a pipeline for judges in the Bush White House, is hosting a call this morning with National Review writer Andy McCarthy, a former federal prosecutor, lawyer David Rivkin, and Chapman University Law School Dean John Eastman.

Their claim, as Politico noted, was that the "much-criticized memos from the Office of Legal Counsel were perfectly reasonable." McCarthy brushed off the CIA's use of waterboarding on terror suspects by proclaiming "they were not going to be killed by the tactic." Eastman, whose university is hosting Federalist Society member and Bush torture architect John Yoo as a visiting professor, insisted the treatment was no worse than that undergone by American service personnel:

Eastman responded to The New York Times's Scott Shane about the use of waterboarding during the Spanish Inquisition and by the Japanese military, and responded "that psychological reviews of graduates of the military's SERE program, in which members of the U.S. military were waterboarded, is a more relevant example.

"Why would I go and look at something the Spanish Inquisition did just because it was also called 'waterboarding'?" he asked.

Perhaps because, as the Bush Office of Legal Counsel chief and 2005 torture memo author Steven Bradbury concluded four years ago, "SERE trainees know it is part of a training program."

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