House subcommittee airs conservative opposition to Voting Rights Act enforcement

By Vivake Prasad and Morgan Lee
AFJ Summer Associates

On Thursday, July 18, the House Subcommittee on the Constitution and Civil Justice held a hearing on the status of the Voting Rights Act (VRA) after Shelby County v. Holder struck down Section 4 of the law.  That section determined which states required preclearance before making changes to voting laws and procedures.  The hearing opened with a statement by Chairman Trent Franks, R-Ariz., one of only 33 Republicans in Congress to vote against the reauthorization of the VRA in 2006.  The overarching message from the Republican subcommittee members paralleled Chief Justice John Roberts’s Shelby County opinion: legislative remedies should respond to current conditions, and removal of the coverage formula in Section 4(b) does not spell doom for the VRA because it leaves intact other mechanisms for remedying voter discrimination.

Rep. Franks remarked on the virtues of reviewing allegations of voter discrimination under Section 3, which allows “bail-in” of jurisdictions with a history of voter discrimination, subjecting them to preclearance under Section 5.  Rep. Steve King, R-Iowa, notable for racially insensitive and controversial comments on immigration, took it one step further into the absurd, saying any update to the VRA should ban multilingual ballots.

Prof. Spencer Overton

The panel of witnesses made the gulf between the current positions of the two parties eminently clear.  The four witnesses included two opponents of the VRA’s coverage formula: J. Christian Adams of the conservative Election Law Center and Hans von Spakovsky of the Heritage Foundation. Also testifying were two advocates for voting rights: Professor Spencer Overton of George Washington University Law School and Robert A. Kengle of the Lawyers’ Committee for Civil Rights Under Law.

Adams referred to voter discrimination in the country as “vague and attenuated so-called second-generational structural discrimination,” and stated that this was not enough to warrant federal intervention. The former DOJ Voting Section attorney argued that the low number of investigations brought under Section 2 since President Obama took office was evidence of virtually non-existent voting discrimination. Notwithstanding Adams’s logically dubious assertion – for example, reduced Section 2 enforcement could be a product of limited resources or the deterrent effects of Section 5 – his testimony omitted the fact that Section 5 preclearance, based on the Section 4(b) coverage formula, has preempted numerous discriminatory proposals for voting changes.  Indeed, Rep. John Conyers, D-Mich., held up a binder containing 72 Department of Justice (DOJ) objections to proposed voting changes between 2000 and 2012. Adams, who served in the Department of Justice under George W. Bush, is known for racially inflammatory remarks. He recently suggested that the DOJ would be acting in concert with the New Black Panthers if it decided to pursue charges against George Zimmerman.

Von Spakovsky, who, while working in the Justice Department, shifted the DOJ Civil Rights Division’s focus from voter protection to “voter fraud” and is a vocal proponent of voter ID laws, was similarly extreme in his remarks. Arguing that voter discrimination has virtually disappeared since 1965, he repeatedly cited a favorite statistic of Voting Rights Act opponents: Black voter registration and voting rates now outnumber that of whites in districts covered by Section 5, due in part to something he termed “apartheid redistricting.” As Justice Ginsburg would say, von Spakovsky clearly prefers to throw out his umbrella during a rainstorm.

Furthermore, even though Shelby County explicitly refrained from making a determination on the constitutionality of Section 5, that did not stop von Spakovsky from suggesting that preclearance was no longer necessary since the American Civil Liberties Union has assets of $360 million to fight individual cases on behalf of disenfranchised minority voters.  But Overton aptly pointed out that the cost and burdens of that level of litigation would be prohibitive to many victims of voter discrimination – costs borne not only by the litigants, but by the Department of Justice and the taxpayers.

Thursday’s hearing made clear the challenges for congressional action after Shelby County. While House GOP members made few comments, Rep. King stated that any congressional effort with regards to voting rights would have to include provisions for voter ID and English-only ballots. Additionally, the extreme nature of the conservative witnesses’ testimony suggests that a compromise may be hard-won.

Judge Wants DOJ Explanation on Investigation of CIA Tape Destruction

The Blog of Legal Times reported yesterday that Department of Justice prosecutor John Durham may soon be called into court to address his handling of the investigation into the destruction of CIA tapes documenting torture. Durham let the statute of limitations expire in November, 2010 without issuing criminal indictments. The ACLU is involved in a public records lawsuit before Judge Alvin Hellerstein, the judge who ordered the CIA not to destroy the tapes in 2004. Hellerstein expressed interest in bringing Durham in to address the court.

Durham is still involved in investigating CIA interrogation of detainees alleged to have been abusive and in some cases fatal. Though the parameters of Durham’s investigation are unknown, it is thought that it may extend to include Bush Administration officials, including the authors of the torture memos, including John Yoo and Jay Bybee.

The full Blog of Legal Times article is available here.

Nan Aron on Huffington Post: Rule of Law Takes a Holiday While Bush Admits Torture and CIA Gets Off the Hook

This week, along with the spectacle of former President George W. Bush bragging on national television about authorizing torture, federal prosecutor John H. Durham allowed the statute of limitations to expire without pressing charges against C.I.A. agents and attorneys who participated in the destruction of videotapes chronicling the interrogations and mistreatment of Abu Zubaydah and Abd a-Rahim al-Nashiri.

Alliance for Justice is extremely disappointed that once again no one in the United States government is being held accountable for criminal acts undertaken as part of the Bush Administration's policy of abusing and torturing prisoners. The decision by Mr. Durham not to prosecute C.I.A. officials who destroyed evidence of detainee mistreatment is yet another example of the government officials involved in torture and other illegal conduct being given a free pass for their actions. We believe that Mr. Durham owes the country an explanation and should release a report of his findings and publicly explain the reasoning for his decision to allow C.I.A. officials off the hook.

Mr. Durham's decision is particularly disturbing in light of the admission this week by George W. Bush that he willingly authorized torture and that his actions were acceptable because a lawyer told him he could do it. Since Nuremburg, the world has understood that lawyers cannot provide immunity for crimes against humanity. We have also come to understand that the lawyers who enable such crimes themselves violate the law and can be prosecuted, whether they work for the Department of Justice or the C.I.A. Each time our government fails to face up to the crimes of its leaders, the United States slips further toward lawlessness and diminishes its hard-won ability to lead the world toward respect for the rule of law and human rights.

In light of President Bush's admissions and with abundant evidence available of egregious and criminal behavior, John Durham and the Justice Department must accelerate and intensify the investigation into the Bush Administration's illegal torture practices. It is long past time for the Obama Administration to take seriously its commitment to uphold the law of the land and bring to justice both the senior leaders who authorized torture and the lawyers who served as their enablers. To do otherwise makes a mockery of the men and women of the military, who, since George Washington, have treated prisoners humanely and of our long-professed belief that the rule of law should guide the world.

Read Nan Aron on Huffington Post

Group Seeks Information on Whitewashed OPR Report

The Robert Jackson Steering Committee (RJSC) announced today that it has filed an appeal asking the Department of Justice to be more candid in its disclosures regarding the whitewashed Office of Professional Responsibility report into the lawyers who authored memos used by the Bush Administration’s Justice Department to justify torture. RJSC filed a Freedom of Information Request (FOIA) in January, seeking information related to the Department of Justice’s downgrading of the findings contained in the OPR report. DOJ supplied documents with heavy redactions, which RJSC believes were designed to insulate senior officials from criminal liability. They have submitted an appeal requesting fuller compliance with FOIA.

The 267-page OPR report about the “torture memo” authors was released in February, 2010, after a five-year investigation into the conduct of three former senior lawyers in DOJ's Office of Legal Counsel (OLC) – Professor John Yoo, now-Judge Jay Bybee, and Steven Bradbury. The report was revised to clear Yoo, Bybee, and Bradbury of any wrongdoing. An earlier draft of the report concluded that Yoo and Bybee violated their professional responsibilities in drafting the most infamous 2002 “torture memo,” but, Associate Deputy Attorney General David Margolis softened the report to conclude only that they showed “poor judgment.” Under DOJ rules, “poor judgment” does not amount to professional misconduct and therefore does not trigger a referral to state bar associations for disciplinary review or, in the case of Judge Bybee, a recommendation for an impeachment inquiry.

AFJ’s film Tortured Law explains in further detail the role that Yoo, Bybee, and Bradbury played in authorizing torture, and highlights the need for accountability.The OPR report revealed new information about the Bush Administration’s decision to condone torture, and showed the need for a full-scale investigation into what led our country to torture. OPR's investigation uncovered new evidence that begins to fill in the historical record, but the facts documented in the OPR report are just the newest pieces of a puzzle that still warrants a full investigation. Because OPR only has jurisdiction over DOJ attorneys and lacks subpoena power to compel witness cooperation or document production, OPR's review of the legal work that produced the first "torture memos" was just a first step towards accountability.

Congress should reassert its oversight role and conduct further hearings about the development of torture policy in DOJ and other government agencies. The Senate Judiciary Committee held a hearing on the OPR report in the spring, now the House should follow suit by holding a full hearing on the OPR report in which they question the authors of the "torture memos" as well as other players mentioned in the OPR report (including those such as John Ashcroft, who refused to voluntarily comply with the OPR investigators) about the interactions between DOJ, CIA, Department of Defense, and the White House in developing torture policy.

Holder Under Fire

Attorney General Eric Holder is scheduled to appear before the Senate Judiciary Committee on Thursday, March 23. The hearing is billed as “oversight of the Department of Justice,” and AG Holder will likely face questions about his decision to try Khalid Sheikh Mohammed in New York City and the decision to federally prosecute “underwear bomber” Umar Farouk Abdulmutallab. As David Cole writes in The Washington Post, certain figures on the Right continue to distort facts to paint the administration as weak on national security.

Less likely to be mentioned is the whitewashing by DOJ attorney David Margolis of the Office of Professional Responsibility report detailing the internal process that allowed government lawyers to attempt to authorize torture via a series of “torture memos.” Margolis, a career attorney and 17 year veteran of his current post, downgraded the report’s original finding of “professional misconduct” to one of “poor judgment” by the lawyers. The change in finding results in a short-term pass on accountability, because the government will not refer the lawyers to state bars for disciplinary consideration. To-date, the attorneys whose legal hack job made the United States a torture nation have avoided serious investigative scrutiny and returned to successful careers: most notably, John Yoo as tenured faculty at UC Berkeley, and Jay Bybee as a federal judge on the United States Court of Appeals for the Ninth Circuit.

Attorney General Holder has an obligation to defend the Constitution and prosecute illegal behavior. Sign our petition calling on him to conduct a full investigation of the torture memo authors.

The Role of the Office of Legal Counsel and the Use of Torture

The Center for American Progress held an event featuring our film, Tortured Law and a distinguished panel this week.

Congressman Jerrold Nadler joined panelists Nan Aron, President, Alliance for Justice;

David Cole, Professor of Law, Georgetown University; and Bruce Fein, Chairman of the American Freedom Agenda for a discussion moderated by Ken Gude, Associate Director, International Rights and Responsibilities, Center for American Progress on the OPR report and next steps toward torture accountability.

You can watch the full event below:

OPR Report on “Torture Memos” Released By House Judiciary

In classic DC fashion, the report on the authors of the “torture memos” was released Friday night, buried under headlines about Tiger Woods. While the Department of Justice sent the Office of Professional Responsibility (OPR) report to Congress, it was the House Judiciary Committee Chair John Conyers (D-MI) who publicly released not only the final OPR report, but also the first and second drafts of the report and the responses from Yoo and Bybee.

In contrast to most peoples’ perception of Washington, Congress can move quickly when it wants to: by 6pm, less than an hour after the report’s release, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced that his panel will hold a hearing on the report next Friday morning. Leahy also called for Judge Bybee’s resignation.

“I have said before that if the Judiciary Committee, and the Senate, knew of
Judge Bybee’s role in creating these policies, he would have never been
confirmed to a lifetime appointment to the federal bench. The right thing to do
would be for him to resign from this lifetime appointment.”

The long-awaited report is the product of a five-year investigation by OPR, and the materials released by Conyers number more than 500 pages. We will be reading and analyzing the different drafts of the report and providing more in-depth analysis as we know more.

You can read the released documents here:
Memorandum for the Attorney General
OPR Final Report
OPR 1st Draft Report
OPR 2nd Draft Report
Yoo Response to OPR 2nd Draft
Yoo Response to OPR Final Draft
Bybee Response to OPR 2nd Draft
Bybee Response to OPR Final Draft

American Idle: Dawn Johnsen committee vote delayed

On February 4, the Senate Judiciary Committee had scheduled a vote on Dawn Johnsen, nominee to head the Office of Legal Counsel, but the vote never happened. After spending more than an hour considering other nominees also scheduled for votes, the committee ended its meeting because a number of senators had to leave to attend to other business, causing the committee to lose the quorum necessary to hold votes.

Johnsen is supremely well-qualified. Before a distinguished career as a Constitutional law professor, Johnsen served as acting head of the OLC for a full year during the Clinton administration. Her performance in this role was so exemplary that it was lauded by Republican-appointed Doug Kmiec, head of the OLC under presidents Reagan and Bush senior. Kmiec praised Johnsen’s independent judgment, saying that she “repeatedly separated policy preference from rendered opinion.” Johnsen also has the support of her Republican home state senator. Despite outstanding qualifications and recommendations, Johnsen’s nomination has sat idle in the Senate, requiring a second nomination by President Obama. Hopefully, with the support of Richard Lugar (R-IN) and Arlen Spector (D-PA), Johnsen’s confirmation vote will be able to successfully move past a legislative quagmire.

It is past time that Republicans in the Senate stopped reducing judicial and executive nominations into a partisan, ideological battlefield. The American people deserve a fully functional government that can ensure adherence to the rule of law. A proper OLC director with integrity and good judgment is crucial to that end. The office is routinely called upon to draw fine distinctions in the potential legality of proposed policies and executive orders, to ensure that the President follows established law. After gross misconduct of OLC attorneys in recent years, the OLC would be well served by a director with the experience, integrity, and intellect of Dawn Johnsen.

DOJ Whitewashes “Torture Memo” Ethics Report

News leaked this weekend that the five-year old Office of Professional Responsibility report about the “torture memo” authors has been downgraded to clear John Yoo, Jay Bybee, and Steven Bradbury of any wrongdoing. An earlier draft of the report concluded that Yoo and Bybee violated their professional responsibilities in drafting the most infamous 2002 “torture memo,” but, as Newsweek first reported, Associate Deputy Attorney General David Margolis has softened the report to conclude only that they showed “poor judgment.”

Under DOJ rules, “poor judgment” does not amount to professional misconduct – and therefore does not trigger a referral to state bar associations for disciplinary review or, in the case of Judge Bybee, a recommendation for an impeachment inquiry. This news confirms suspicions that the Obama DOJ has not spent the last year simply processing the OPR report draft through the normal channels of declassification review but has been modifying the report to let the “torture memo” authors off the hook.

Newsweek also reported that the report contains new facts that will raise further questions about what led the OLC lawyers to write the “torture memos” and whether the White House unduly interfered with their legal decisions. According to Newsweek:

The report, which is still going through declassification, will provide many new
details about how waterboarding was adopted and the role that top White House
officials played in the process, say two sources who have read the report but
asked for anonymity to describe a sensitive document. Two of the most
controversial sections of the 2002 memo—including one contending that the
president, as commander in chief, can override a federal law banning
torture—were not in the original draft of the memo, say the sources. But when
Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s
request for a blanket pledge not to prosecute its officers for torture, Yoo met
at the White House with David Addington, Dick Cheney’s chief counsel, and
then–White House counsel Alberto Gonzales. After that, Yoo inserted a section
about the commander in chief’s wartime powers and another saying that agency
officers accused of torturing Qaeda suspects could claim they were acting in
“self-defense” to prevent future terror attacks, the sources say. Both
legal claims have long since been rejected by Justice officials as overly broad
and unsupported by legal precedent.

The OPR report will therefore add to the mounting evidence that calls for a full-scale investigation into what led our country to torture. For years, DOJ has hidden behind the phantom OPR report as a means of accountability for Yoo, Bybee, and Bradbury. Yet, regardless of the degree of their professional misconduct, our laws require Attorney General Holder to investigate all allegations of torture and enforce our laws to the fullest extent possible. If OPR lets the “torture memo” authors off the hook, it has proven itself to be as ineffective as its critics have claimed it to be – and provides all the more reason why AG Holder should appoint a special prosecutor, who is independent from the institutional interests of DOJ, to investigate allegations of torture.

"Torture Memo" Author John Yoo to Appear on the Daily Show

John Yoo has received much press recently after releasing his new book, Crisis and Command. On Monday, January 11, Yoo will appear on the Daily Show to promote the book, purportedly a history of seizures of power by American presidents dating back to George Washington. As we reported yesterday, the Department of Justice’s internal ethics report on the Office of Legal Counsel lawyers, including John Yoo, who authored the “torture memos,” has still not been released.

Given the history of appearances by former DOJ officials on the show, we trust that Jon Stewart will not shy away from confronting Yoo over his authorship of the torture memos. We hope he will also focus on the need for accountability. There is strong political pressure, including within the Obama administration, not to look back - not to investigate. But how can we hold other countries accountable for acts of torture, and not ourselves? Americans have a right to know the facts about what U.S. government lawyers did to provide legal cover for torture. We must hold accountable those who led America astray to make sure this travesty of justice never happens again. For the facts about John Yoo and the torture memos, watch our short film Tortured Law.

FOIA Request Filed For the OPR Report

Today, members of the Robert Jackson Steering Committee (including Marjorie Cohn, a law Professor at Thomas Jefferson School of Law featured in our film, Tortured Law) filed a request under the Freedom of Information Act requesting the report from the Department of Justice’s Office of Professional Responsibility (OPR) on the Office of Legal Counsel lawyers who authored the “torture memos.” Release of the report has been repeatedly delayed for over a year, and most recently Attorney General Holder promised in November to release it “by the end of the month.” The end of November has come and gone and the report has still not been released.

In addition to requesting the release of the OPR Report, the FOIA request submitted today asks for the following sets of documents:

1.The long-overdue ethics report of the Office of Professional Responsibility (OPR) regarding the performance of Bush administration lawyers in the Office of Legal Counsel (OLC) from 2002-2007. The Attorney General last promised to release this report by the end of November, 2009, and it still has not been released.
2. The first OPR ethics report on the performance of Bush administration lawyers in the OLC, completed in December, 2008.
3. Former Attorney General Michael Mukasey's 10-page rebuttal of the December, 2008 report, referenced in The New York Times of May 6, 2009.
4. A copy of OPR regulations regarding settled procedure on conducting a misconduct investigation and producing a report.
5. A copy of any OPR regulations that allow the subjects of the investigation to a) read the final report, b) make changes to the report, and c) allow the Attorney General to rebut the report.
6. Copies of all written warnings from 2001 on from veteran members of the Survival, Evasion, Resistance and Escape (SERE) training program to the Department of Justice, including the OLC, stating that SERE methods of interrogation on detainees were ineffective in eliciting the truth and designed more to elicit false confessions.
7. Copies of all communications from military and national security lawyers and professionals to the Department of Justice, including the Office of Legal Counsel, objecting to the form of interrogation methods proposed by the CIA and adopted by the Bush White House and the OLC lawyers in 2002.
8. Given John Yoo's statement on p 15 of the New York Times Magazine of January 3, 2010, that "if there's a conflict between the president and the Congress, then you have to pick one or the other," we also request any documents shedding light on whom an OLC lawyer is supposed to 'represent' in rendering a legal opinion: the President, Congress, the Constitution, or the entire framework of domestic and international law?

This FOIA request is a good step. We hope it brings us closer to the accountability for torture that America needs.

Torture Accountability Day of Action

Today, people from across the country are making calls to the Department of Justice. They are asking Attorney General Holder to release the report on the “torture memos” and authorize a full investigation of torture.

We’ve already received feedback from supporters who have made calls and we will be posting updates on this blog throughout the day about that feedback.

Be sure to Call Attorney General Holder today!

Update: (10:35 am EST) We just got this feedback from a caller:

"Left a message due to high call volume" recording said they would get back to me in regard to the issue. WE WILL SEE.

It sounds like we are already flooding their lines this morning!

Update: (10:50 am EST) more feedback, from people calling in:

He said he was getting other calls about this matter and would pass my concerns along.

Update: (11:50 am EST)

On Huffington Post: Call on Attorney General Holder to Release the "Torture Memos" Report

Update: (12:20 pm EST) Volunteers handing out constitutions and spreading the message in Dupont Circle, Washington, DC.


Update: (1:15 pm EST) More feedback from callers:

The answering machine said that if I got this message during regular working hours (which it was), the office was experiencing a large volume of calls and to please leave a message. I did so, asking that The Attorney General release the memos and then investigate who was responsible and bring them to justice.

Update: (2:45 pm EST) Blog post on Firedoglake, Liberate the OPR Report

Update: (3:00 pm EST) more caller feedback:

They indicate that they were aware of the importance of the issue and would take my call under advisement

Alliance for Justice Board Member Bradley Whitford launches fundraising challenge

Yesterday, Alliance for Justice -- with the help of Brad Whitford -- issued a fundraising goal of $10,000 by November 12th.

On that day, Alliance for Justice is organizing a National Torture Accountablility Day of Action. If we can raise $10,000 by that date, we will be able to place targeted ads, organize dozens of events across the country, and mobilize thousands of activists to write, call, and email Attorney General Holder, urging him to release the report on the torture memos and investigate those who ordered, designed, and justified torture.

We have already raised 11% of our goal; will you help us get to 100% by November 12th?

Join Brad Whitford and help to raise the $10,000 AFJ needs to get the job done.

The Waiting Is the Hardest Part

Crucial Justice Department nominations are still being held up in the Senate.

Dawn Johnsen, nominated to head the Office of Legal Counsel, and Tom Perez, whom the president picked to lead the Justice Department’s Civil Rights Division, have been waiting for many months to be confirmed. Seven and five months, respectively. The last action on Johnsen's nomination occurred on March 19 and the last action for Perez on June 4. Both were placed on the executive calendar, but Republicans are obstructing the much-needed restoration of the DOJ’s role as a guardian of civil rights and liberties.

While there may be a vote on the Perez nomination as early as later next week, nothing is certain, and we need to keep up the pressure on all senators – with the message that these are vital positions that need to be filled. There is no reason to object to or obstruct the confirmation process of these highly qualified nominees.

Call your senators now and urge them to do all they can to help confirm Dawn Johnsen and Tom Perez. Call the U.S. Capitol Switchboard at (202)224-3121, ask to be connected with your senators’ offices, and tell them it is time to put an end to the partisan games.

The Justice Department was severely damaged during the Bush administration and the leadership of Dawn Johnsen and Tom Perez in two of its most important offices will help get it back on track defending our rights and liberties [not sure if I missed this in the original, but there shouldn't be a colon here] .

Call now. And ask others to do the same.

Former Prosecutor Senator Whitehouse Makes the Case for Broader Investigation

In this week's National Law Journal, Senator Sheldon Whitehouse laid out the case for investigating the architects of the torture regime as only a former prosecutor can. The senator, who is a former United States attorney and attorney general for Rhode Island, noted that the investigation ordered by Attorney General Holder is unexceptional. Were high level government officials not involved, there would be no surprise whatsoever at investigating where there is clear evidence of misconduct and wrong-doing. Senator Whitehouse notes, “In America, high office does not put one outside the law.”

The senator also advocates for a broader scope to the investigation, and the need to follow where the evidence leads, including into the conduct of lawyers like Jay Bybee and John Yoo. Indeed, not investigating their conduct could be akin to prosecutorial misconduct. Or, as Whitehouse puts it, “Indeed, it borders on unethical for a prosecutor to refuse to investigate the corpus delicti of a crime because of concern as to where the evidence may lead.”

This is exactly why we are asking Attorney General Holder to authorize a full-scale investigation of those who ordered, designed, and justified torture. The investigation must follow the facts where the evidence leads, not on a predetermined path. It must reject blame-shifting and include the high-level officials who sanctioned and attempted to justify torture, not just the individuals who carried it out. A crime is a crime, whether committed by an ordinary citizen, a CIA officer, or a Justice Department lawyer. The only way to get at the truth is to have an unfettered investigation. We cannot ignore the lawbreaking of senior government officials and thus the systemic problems that led our country astray in the first place.

Piecemeal Prosecution Only One Piece of the Torture Puzzle

Two weeks ago we asked about the release of the Office of Professional Responsibility’s (OPR) report on the torture memos. Again. Many hoped that the report would be released today in tandem with the CIA inspector general’s report, but, alas, Attorney General Holder’s statement indicated that it might be some time before we see the OPR report. The absence of this report, then, keeps the focus on the actions of low-level operatives detailed by the IG report (released today by court order), rather than looking up the chain of command to people like lawyers Jay Bybee, John Yoo, and Steven Bradbury who designed the legal framework for the torture regime.

While Mr. Holder did announce the appointment of a special prosecutor today, the scope of the prosecutor’s mandate and discretion is much too narrow. As Alliance for Justice President Nan Aron observed:

We need a full-scale investigation presided over by a special prosecutor
who can operate without artificial constraints and who has the discretion to
follow the facts where the evidence leads, including up the chain of
command. No blinders should be put on a special prosecutor, and no
artificial barrier constructed to shield certain perpetrators from evidence of a
crime.

Any investigation must reject blame-shifting and include
the high-level officials who sanctioned and attempted to justify
torture, not just the individuals who carried it out. We cannot
tolerate another investigation that ignores the lawbreaking of senior
government officials without addressing the systemic problems that
led our country astray in the first place.

Call on A.G. Holder to Launch a Full-Scale Investigation of the "Torture Memos.”

Accountability is a Dirty Word to Senate Republicans

What is it about accountability that inspires such antipathy in certain Senate Republicans? According to Congressional Quarterly (subscription required), nine Republicans are urging Attorney General Eric Holder "not to investigate CIA interrogators who might have exceeded Justice Department legal guidance on acceptable techniques." But accountability and investigation are key if we are to put this sad chapter behind us, rather than trying to sweep it into the dustbin of history. The letter’s signatories express concerns about a "chilling effect" on United States intelligence activities. But shouldn’t torture, and the culture that led to its commission be not just chilled, but stopped altogether? The argument that holding those who break the law responsible for their actions will somehow damage American intelligence activities is little more than a smokescreen of fear mongering.

The Republicans make specific reference to Justice Department legal guidance, which raises another important point: the investigation should not and cannot stop with the intelligence community; it must extend to the lawyers who twisted the law and Constitution to structure these so-called guidelines in the first place. Or, as Senator Feingold put it in a letter written last month, "While allegations that individuals may have even gone beyond what was justified by those now-public OLC memos are extremely disturbing, we should not lose sight of the fact that the program itself — as authorized — was illegal, not to mention immoral and unwise."

Seriously, where is the OPR report?

In June we asked the question “Where is the OPR report on the torture memos?” But Attorney General Eric Holder only gave excuses for the report’s tardiness.

Senators Durbin (D-IL) and Whitehouse (D-RI) asked Attorney General Eric Holder the same question during a Senate Judiciary Committee oversight hearing, but we are no closer to an answer and the report is still MIA. Nearly two months ago Holder claimed that the process was close to the end and that the report would be ready in “a matter of weeks.”

As we’ve said before, Alliance for Justice is not urging undue haste. The Department of Justice needs to get this right so we can understand how the Department went so wrong. However, this investigation began over five years ago, and we are still waiting for answers.

So we have to ask again, “Where is the OPR report on the torture memos, AG Holder?”

Cloture for Koh, What About Johnsen?

Great news, the Harold Koh cloture vote was a success earlier today and the vote on his nomination to be legal adviser to the State Department will likely be held tomorrow. It will be refreshing for the American people to have such a wonderful legal mind at the State Department, particularly in light of recent international events. Yet, the Office of Legal Counsel in the Department of Justice is still waiting for leadership. Why isn’t Dawn Johnsen’s confirmation moving forward? With the support of both home-state senators and widely respected experts on both the left and right, and all of the important issues facing the executive branch - especially the Department of Justice - it is time for this highly qualified nominee to be confirmed.

The Bybee Question

Thanks to everyone who attended our event The Bybee Question: Is Impeachment Appropriate? yesterday. A panel of legal experts and scholars convened at the National Press Club to discuss the potential impeachment of Ninth Circuit Court of Appeals Judge Jay Bybee for his role in authoring and authorizing torture memos during his tenure as head of the Department of Justice's Office of Legal Counsel. If you missed the event, footage is available here.

AfterDowningStreet.org posted a great summary of the event, and both Harper's Magazine and Think Progress provided coverage of yesterday's Senate Judiciary Committee hearing, "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration" in addition to our event.