Was OLC Procedure Bypassed With Torture Memos?

Something else worth noting from the PFAW/AFJ/NWLC/NARAL-sponsored press call in support of Dawn Johnsen yesterday. 

Doug Kmiec pointedly called out something that was missing from the OLC torture memo context:

That’s an office that’s a small office. It’s an office that until recent times is obscure. But, nevertheless, it has always been depended upon for its ability, as is often said, to say no when no needs to be said. 

And that requires that certain procedures be observed: That the office insists upon requests to it to be in writing. That the views of the requester be identified. That all of the effected agencies are given an opportunity to weigh in — and that the facts at one agency is anticipated — as was the case in the torture memo context — to strongly object, as the State Department did, that they wouldn’t be kept from the process. And most assuredly that one would not frame the advice that one would give to ratify a procedure that one would so obviously see to be in tension with the words of the statue and the treaty obligations of the United States.

None of these things, it seems to me, are things to chastise Professor Johnsen for – but to praise her….

It isn’t just that Dawn Johnsen is well aware of the procedures, the law and the balance of powers arguments within constitutional scholarship. It’s that she’d have the nerve to do her job properly — and point out where problems had been in the past — that’s rattling so many skittish folks inside the Beltway. 

Do you think that regular procedure at OLC was bypassed by coincidence or deliberately so?  And, if deliberately, why? 

Aren’t these questions that ought to be asked?

They likely are questions that were asked — and answered — for the upcoming OPR report.  As Kmiec and Walter Dellinger made clear in the call after I asked about this, having the head of OLC in place before that OPR report is released would be far better for the nation and the rule of law.  Because the aftermath of the report is likely going to require changes and substantial accountability measures that cannot be forcefully taken by someone in an acting head capacity.

And that may be the point in trying to delay the vote.  Funny how happens, isn’t it?

Please call your Senators and tell them to vote FOR cloture and FOR Dawn Johnsen for OLC.  Also, take a moment to call Harry Reid’s office — (202) 224-3542 — and tell him to schedule a vote.  

24 Responses to "Was OLC Procedure Bypassed With Torture Memos?"
Adie | Tuesday April 28, 2009 07:48 am 1

Thank you Christy.

foothillsmike | Tuesday April 28, 2009 08:39 am 2

What can one expect from an administration that believes it is the law.

demi | Tuesday April 28, 2009 08:42 am 3

My thanks to you too, CHS. Understanding the hows and whys should help us try to fix the mess.

Christy Hardin Smith | Tuesday April 28, 2009 08:44 am 4
In response to foothillsmike @ 2

“L’etat? C’est Dick.”

Rayne | Tuesday April 28, 2009 12:31 pm 5
In response to Christy Hardin Smith @ 4

“…if you will.”

There is no procedure where he is concerned, because he was the unspecified, undocumented, undelineated Fourth Branch.

Gah. I will be so glad to have the shadow of that man-monster gone from our daily discourse.

tejanarusa | Tuesday April 28, 2009 01:33 pm 6

Is there a chance Prof. Kmiec could talk some sense into Cornyn?

Kmiec is conservative more like my Republican dad was – principled, not “my party over my country right or wrong.”

I’ll call, but the usual disclaimer froma Cornyn constituent.
Maybe I’d have more luck with Harry.

Waccamaw | Tuesday April 28, 2009 01:43 pm 7

Christy -

Wrt another candidate waiting in the wings: did Sebelius come up for a vote today?

Waccamaw | Tuesday April 28, 2009 01:50 pm 8
In response to Waccamaw @ 7

Christy -

Just saw on C-Span2 still no vote.

Raven | Tuesday April 28, 2009 05:27 pm 9
In response to Waccamaw @ 7

she’s in

Raven | Tuesday April 28, 2009 05:28 pm 10

(CNN) — The Senate confirmed former Kansas Gov. Kathleen Sebelius as secretary of Health and Human Services Tuesday on a 65-31 vote.
Kathleen Sebelius starts her term with Health and Human Services in the middle of a public health outbreak.

The timely vote will put Sebelius in office as the Obama administration is up against its first public health outbreak.

JimWhite | Tuesday April 28, 2009 05:36 pm 11

It isn’t just that Dawn Johnsen is well aware of the procedures, the law and the balance of powers arguments within constitutional scholarship. It’s that she’d have the nerve to do her job properly — and point out where problems had been in the past – that’s rattling so many skittish folks inside the Beltway.

I think you’ve hit on another major aspect of why they are trying to block her: her intimate knowledge of both the Constitution and the proper functioning of OLC will allow her to quickly identify just how badly it was abused by the Bush Administration.

Were ACLU personnel on the call? If not, you should forward this post to them and suggest a new round of FOIA filings. Were the requests for the torture memos put into writing and was State allowed to comment?

bmaz | Tuesday April 28, 2009 05:38 pm 12

Thanks for keeping people in the game on this Christy. it is important.

Raven | Tuesday April 28, 2009 05:38 pm 13

I thought this Digg stuff got 86′d?

plutonicus | Tuesday April 28, 2009 05:41 pm 14

The smoking gun, to my mind. Proof positive that the intelligence was being fixed about the policy. And a new sherriff in town? One who actually lives by the law? I hope this is what Obama had in mind all the time, but I’ll take it either way.

Teddy Partridge | Tuesday April 28, 2009 05:57 pm 15

Okay, I’m being contrarian here, but it’s based on the hullabaloo the rightwing raised over the report issued by the “Obama/Napolitano Homeland Security Department” discussing rightwing extremists and their potential influence on veterans. Secretary Janet actually apologized to US veterans for the report, while the right wailed about it and blamed “Obama’s DHS.”

So, would it be better if the report came out RIGHT NOW and Dawn Johnsen was then confirmed? I wonder if it would inoculate her from the barrage of criticism the report will generate: “Hey, I just got here, I’m reading the report too!”

Larue | Tuesday April 28, 2009 05:58 pm 16

A great read, and reason to press for confirmation so we can move forward to ’see back’. *G*

Thanks, CHS

TheLurkingMod | Tuesday April 28, 2009 06:02 pm 17

Eli is upstairs at the Mothership!
Oh, My D-Arlen.

MadDog | Tuesday April 28, 2009 06:10 pm 18

There was another “curiousity” that bugged me in EW’s post yesterday of “Did Condi Really Not Know Defense Was Sleeping with the Spooks on Torture?“.

EW quoted from Yoo’s prepared testimony for last year’s House Judiciary Committee:

In particular, the offices of the CIA general counsel and of the NSC legal advisor asked OLC for an opinion on the meaning of the anti-torture statute. They set the classification level of the work and dictated which agencies and personnel could know about it. In this case, the NSC ordered that we not discuss our work on this matter with either the State or Defense Departments.

(My Bold)

The NSC legal advisor at that time was John Bellinger. And yet, as EW noted:

To be fair, Yoo is referring to the production of just the Bybee One memo–the one requiring torture to rival organ failure or death–and not the recently-released Bybee Two memo–the one detailing the techniques in question.

The “curiousity” that bugs me is that Bybee One memo is addressed as a response to Alberto Gonzales as White House Counsel.

Nowhere is there a response to John Bellinger, Legal Adviser to the National Security Council who, as John Yoo wrote was “the NSC legal advisor asked OLC for an opinion on the meaning of the anti-torture statute. “

It may simply be that Bush/Cheney WH bureaucratic policy was to have all OLC opinions requested by WH staff be addressed back to Alberto Gonzales as White House Counsel.

Or it may have been due to the reported harrassment that Bellinger constantly received:

A special target of Addington’s needling during the first term was John B. Bellinger III, at the time the chief legal adviser to national security adviser Condoleezza Rice. Addington would attack any sign of caution or wariness from Bellinger about proposed policies, breaking in to say, “That’s too liberal,” or “You’re giving away executive power,” remembers a colleague. Bellinger is now Rice’s legal adviser at the State Department.

In any event, a “curiousity” I find interesting.

MadDog | Tuesday April 28, 2009 06:25 pm 19
In response to MadDog @ 18

That “curiousity” should be “curiosity”.

Sorry for the typo Christy, but you don’t have an edit. Aaaaaahhhhh! *g*

oldoilfieldhand | Tuesday April 28, 2009 07:38 pm 20

Thanks Christy! Cheney, Scooter, Addington, rumsfeld, Rice and Baby Bush all knew that they was cutting out the people who had the wisdom to stand up to them. They rigged the deck and then claimed they were playing the cards they were dealt. Yoo torture people with the legal cover Yoo have, not the legal cover you want.

oldoilfieldhand | Tuesday April 28, 2009 07:38 pm 21


nahant | Tuesday April 28, 2009 08:17 pm 22

And that may be the point in trying to delay the vote. Funny how happens, isn’t it?

Well du oh the Republicans are the part of NO and don’t want some one of Dawn Johnsen’s integrity to be the head of the OLC and yes she is someone who would say no when something goes against the Rule of Law or Treaties signed by the US. The Republicans want to rule their way and not by the rules set forth by the Constitution!
Thanks Christy(:>))

MarkH | Tuesday April 28, 2009 08:57 pm 23

Fantastic picture, but is it a real picture or a kabuki representation of *real* kabuki guys? Hmmmm.

pdaly | Tuesday April 28, 2009 09:46 pm 24

Diogenes2008 this past Friday in Drational’s dkos thread Tracheotomy Kit in the Torture Chamber had a great suggestion for overcoming Obama’s reluctance to prosecute war criminals for torture enhanced interrogation.

Don’t call it “prosecution”. Call it “enhanced inquiry”, and their time in prison can be called “enhanced relocation”.

I think it is a great idea.

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