an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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 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 pullback 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 interesting question is why Republican senators are so deeply threatened by the additional confirmation that the United States engaged in torture. It cannot be diplomatic embarrassment about the names of the countries that cooperated; these can be redacted. It cannot be the revelation of particular techniques; these have been thoroughly vetted in the press in the past several years.
The real resistance, it appears, is to the public disclosure of an official government document approving specific techniques that amount to torture. This degree of specificity and the government's request for approval of specific techniques does not appear in the original torture memos already released to the public. It is one thing to read a memo reading the torture statute ridiculously narrowly; it is another to read a memo stating that the OLC has been asked whether techniques X, Y, and Z violate the criminal law and reaching the conclusion that the law permits them or else the law is unconstitutional. Reading such memos brings us much closer to a specific government order to engage in torture.
Perhaps Senate Republicans and their allies they fear that, if such documents ever came to light, pressure for public investigations-- including a truth commission-- and even the appointment of a non-partisan special prosecutor to investigate possible criminal prosecutions would become inevitable.
Who would be implicated in these investigations is an interesting question. I doubt that it would solely be limited to Republican politicians. Many important and influential people would no doubt be discomfited by the launching of an investigation that actually named names.
There is no guarantee that the release of these documents will strongly shift public attitudes about investigations. Perhaps nothing will come of it; perhaps the public will be far too distracted by the economic crisis to demand further investigation. But apparently well-informed people do not wish to take that risk. As soon as these investigations began, many politicians who now are trying to prevent release of these torture memos would feel compelled to pick sides. They could continue to denounce any investigations, no matter how deserved, as partisan witch hunts. But this would be far more difficult to do once these documents are available for the public to read and are widely reported by the press. Or, they might feel compelled, in order to protect their own political futures, to pile on and denounce people they have been shielding for so long. They too, will be shocked, shocked to discover that torture has been going on.
One thing is clear. Astute politicians must have judged that the disclosure of these torture memos may significantly change the stakes of politics. They fear that these memos will have a powerful effect on public opinion.
That, however, is another reason not to give into this form of political blackmail against Koh and Johnsen and release the memos immediately. Once these documents are released, it will be harder to keep out of government people who have condemned torture and illegality for a very long time. Posted
by JB [link]