Putting The Shame In Our Faces

Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.

The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.

The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.

"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."

The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.

The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.

The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:

Bradbury doesn't pull punches, either. In a document entitled "Memorandum for the Files re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities," Bradbury's first paragraph begins with an urge for all members of government to exercise substantial caution on relying on the above-reference memorandum, authored by Gonzales, Haynes, Yoo and Delahunty as precedent of the OLC, and that this "should not be treated as authoritative for any purpose."

Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?

And where is David Addington's name in all of this, since it's fairly well known at this point that he drafted a hefty helping of this dreck? Guess he can draft it but doesn't deign to be a signatory?

Bradbury goes on to issue a blanket statement that the OLC is not to be used for:

"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."

Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?

I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.

Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.

This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.

Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."

Here's Whitehouse and Patrick Leahy discussing their commission proposal on the Senate floor.



"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.