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. ...

You remember Ken Blackwell, don’t you? He’s the guy who in 2004 served simultaneously as Ohio Secretary of State and co-chair of the Committee to Re-Elect George W. Bush. He used, and abused, his office to help the Bush campaign – including rejecting voter registration forms that weren’t on 80-pound paper stock.

Anyway, he must have been prepping for CPAC when he wrote his latest op-ed on FoxNews.com. Here’s what he said about the Obama administration:

What we are witnessing right now is an anti-Christian programmatic pogrom. What is a “pogrom” it’s the word that describes anti-Jewish raids by Cossacks and others in czarist Russia, but a programmatic pogrom best describes what is happening right now. These are not isolated attacks. And while we no longer have Cossacks to threaten, we now have left-wing bloggers who actually call themselves Kossacks (after the Daily Kos).

A “pogrom,” let’s recall, is “an organized massacre of helpless people; specifically: such a massacre of Jews.” And Blackwell, who most recently served as the vice chair of the RNC Platform Committee, contends that President Obama’s nominees would be leaders of this “pogrom” if confirmed.

He said this about Dawn Johnsen, who was nominated a year ago to lead the Office of Legal Counsel: “If she is confirmed, we will see a radical anti-Catholic, pro-abortion zealot influencing policy throughout the Justice Department—but also policy throughout the entire federal government.”

Johnsen, as it happens, is Christian and teaches Sunday School. She has prominent Republican supporters and a sterling record of commitment to the rule of law. But Blackwell thinks her confirmation is on par with the mass slaughter of Jews.

But he didn’t stop there. He also singled out Chai Feldblum, Obama’s pick to lead the Equal Employment Opportunity Commission, saying that “if confirmed, she would be in position to pursue the pogrom nationwide.” As Ben Smith pointed out, Feldblum is a “Jewish law professor and disability rights scholar… whose father survived the Holocaust in the forests of Poland after losing most of his family.”

Feldblum is also a widely acclaimed academic and vigorous advocate for religious freedom. But that doesn’t matter to Blackwell, who isn’t really big on rational argument. As Rabbi David Saperstein wrote today, “Blackwell’s use of rhetoric invoking the pogroms, the widespread destruction of countless Jewish lives in Eastern Europe, is aimed at quashing reasoned political discourse,” and it “desecrates the memory of those who died in the pogroms.”

One thing is clear, Blackwell isn't trying to convince people – he’s trying to incite them. So will the RNC and Republican leaders denounce the remarks or just pretend not to notice? I think we all know the answer.

Remember how Republicans insisted that a president deserves to have the advisers he chooses? When it's a Democrat in office - not so much.

Scott Horton in The Daily Beast says the Republicans are holding hostage two Obama nominations to keep the torture memos from being released:

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to "go nuclear" over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel (OLC) in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration's abrupt pull back last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration's darkest secrets in exchange for letting these nominations go forward. (...)

The Justice Department source confirms to me that 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.

A Republican Senate staffer further has confirmed to me that the Johnsen nomination was discussed at the last G.O.P. caucus meeting. Not a single Republican indicated an intention to vote for Dawn Johnsen, while Senator John Cornyn of Texas was described as "gunning for her," specifically noting publication of the torture memos.

Even in its last throes, the Bush administration continues its uninterrupted lawlessness. As two recent stories by Charlie Savage of the New York Times revealed, President Bush ignored Congressional statutes requiring privacy disclosures by his Department of Homeland Security and non-discrimination in hiring by faith-based groups receiving federal funds. In twice turning his back on the rule of law, Bush again resorted to his favorite executive power-grabbing tools, the signing statement and "interpretation" by the DOJ's Office of Legal Counsel.

Savage, who won a Pulitzer Prize for his 2006 expose of Bush's unprecedented use of signing statements, revealed last Friday that the President is at again. The White House informed Congress that it is bypassing a law passed as part of the package of recommendation from the 9/11 Commission. Designed to prevent political interference with the Department of Homeland Security:

The August 2007 law requires the agency’s chief privacy officer to report each year about Homeland Security activities that affect privacy, and requires that the reports be submitted directly to Congress “without any prior comment or amendment” by superiors at the department or the White House.

But in a move ranking the Republican on Senate Judiciary Committee Arlen Specter (R-PA) deemed "unconstitutional" and "dictatorial," DHS Secretary Michael Chertoff told Congress the administration would not "apply this provision strictly" because it infringed on the president’s powers. And as Savage detailed, President Bush used a signing statement to thwart the will of Congress - and the law of the land:

The Bush administration defended the decision not to obey the statute. Erik Ablin, a Justice Department spokesman, said its legal view was consistent with what presidents of both parties had long maintained.

Mr. Ablin also said the administration had told Congress that the provision would be unconstitutional, but Congress passed the legislation - which enacted recommendations of the 9/11 Commission - without making the requested change. So the administration decided to sign the bill and fix what Mr. Ablin called its "defects" later.

In condoning illegal discrimination in hiring by religious charities receiving funds from American taxpayers, President Bush turned to his Office of Legal Counsel.

Continue reading »

Attorney General nominee Michael Mukasey’s confirmation hearings got underway this morning, and Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) explored Mukasey’s position on administration torture policies. His response was surprising.

Not only did Michael Mukasey repudiate the so-called 2002 “torture memo” signed by Office of Legal Counsel chief Jay Bybee — which appears to have survived in spirit, if not in letter — but he compared U.S. torture to the Holocaust. [...]

The Bybee memo is “worse than a sin, it’s a mistake,” Mukasey said. He referenced the photographs taken by U.S. troops who liberated the Nazi concentration camps in 1945 to document the “barbarism” the U.S. opposed. “They didn’t do that so that we could then duplicate it ourselves.” Beyond legal restrictions barring torture clearly, torture is “antithetical to everything this country stands for.”

Greg Sargent had the same reaction I did — weren’t Republicans apoplectic when Sen. Dick Durbin (D-Ill.) said something similar two years ago?

One suspects the ensuing firestorm to Mukasey’s remarks will be a little less intense (which is to say, non-existent).

Bill Moyers had on Jack Goldsmith, former head the Office of Legal Counsel at the Justice Department, to discuss how the White House was reacting in their prosecution of the "War on Terror." Note how fear-mongering wasn't limited to the general American public, but to their legal counsel as well.

From the YouTube description:

In these two excerpts from Bill Moyers' Journal, Jack Goldsmith, former head the Office of Legal Counsel at the Justice Department, gives an insider's view of advising the President on the limits of executive power during the war on terror.

In the second excerpt, Goldsmith recounts what he calls "the most amazing scene I'd ever witnessed"-the night then White House counsel Alberto Gonzalez and former White House chief of staff Andrew Card Gonzalez, went to the hospital to try to persuade Attorney General John Ashcroft to give his permission on a secret surveillance plan, overriding acting Attorney General James Comey.

You can watch the entire episode online at PBS.com

Watching Those We Chose: A forthcoming book by a former head of the Attorney General's Office of Legal Counsel tells of Cheney Chief of Staff and Counsel, David Addington, pining away for another terrorist bombing of the United States so that the Administration can grab more power and  eviscerate the Fourth Amendment.

PERRspectives Blog: Bremer letters show Bush OK'd disbanding the Iraqi Army. So much for G-Dub's tall tale to Dead Certain biographer Robert Draper.

Veterans for Common Sense: In July, the Inspector General at the Department of Defense found several generals violated ethics rules for participating in the "Christian Embassy" fundraising and proselytizing video at the Pentagon during office hours among their subordinates. VCS has filed an ethics complaint against the VA's Daniel Cooper for his part in these violations.

BlogActive: An unsung hero in the Craig debacle puts hypocrites on notice...and some useful tips on explaining to kids about Republicans' 'Special Friends'..also, maybe this is the reason Craig is reconsidering his resignation from the Senate

Preemptive Karma: How dirty boys get clean

Mock, Paper, Scissors: Tengrain Presents...Pickles Von Strap-On in "Feminism"

Jonathan Schwarz has a great catch on Bush's signing statements.

When Charlie Savage of the Boston Globe first began writing stories about Bush's presidential signing statements last year, former Bush administration lawyers told us not to be concerned:

Jack Goldsmith, a Harvard Law School professor who until last year oversaw the Justice Department's Office of Legal Counsel for the administration, said the statements do not change the law; they just let people know how the president is interpreting it.

''Nobody reads them," said Goldsmith. ''They have no significance. Nothing in the world changes by the publication of a signing statement..."

As a new story by Savage explains, that's apparently now inoperative:

Tony Fratto, a White House spokesman, defended Bush's use of signing statements and his expansive view of the president's constitutional powers.

"We are executing the law as we believe we are empowered to do so," Fratto said. "The signing statements certainly do and should have an impact. They are real."

So which is it? Maybe some enterprising White House reporter can ask Tony Snow about it....