Tuesday, April 07, 2009

In what kind of society is the law a secret?

The Republicans are threatening to block the nominations of Dawn Johnsen and Harold Koh unless the Democrats desist from publishing the memos which the Bush administration used to justify torture.

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.

Nothing says more about the utter immorality of the Republicans than this. There is only one reason why they object to this memo being made public, and that is because they know that if the public ever gets to read it that the outcry it will cause will demand that both Bush and Cheney face prosecution.

Johnsen has been one of the harshest critics of the tactics employed by the Bush regime, which is why capitulation by Obama over her nomination - on these grounds - would be simply perverse.

She has stated:
The Bush Administration's excessive reliance on "secret law" threatens the effective functioning of American democracy, Indiana University Law Professor Dawn E. Johnsen said this week in testimony to a Senate subcommittee.

Johnsen said the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government. . . .

One principle is that the OLC should "publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." The Bush Administration, [Johnson] said, "has not complied with this public notice standard and has operated in extraordinary secrecy."
And now the Republicans demand that such "extraordinary secrecy" be continued before her nomination can be confirmed; indeed, they are demanding this as the price of her confirmation. Am I alone in finding that utterly f@cking perverse?

Let's remember that we are talking about what is legal and what is not and advice which was given to clarify that distinction. Republicans are now arguing that the legal advice given by the Bush administration should not be made public.

In what kind of society is the law a secret? How can citizens be expected to obey the law if they are never told what the law is?

But it really gives us some indication of how much the Republicans fear the public outcry should this advice ever be made public that they are issuing these extraordinary threats to prevent the Obama administration from doing so.

It makes me doubt that they ever believed this shit was legal in the first place. Oh, they came up with a reasoning, they convinced themselves that what they were doing was perfectly legal, but they lack the courage of their own convictions to allow the rest of us to see those legal arguments and to make up our own minds.

They know that if we ever get to see the documents they produced to justify torture that they are toast. That alone says all that needs to be said.

Obama should publish and be damned.

Hat tip to Crooks and Liars.

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