Regarding that Blistering Report from DOJ re: Torture
I am, as I have mentioned before, an attorney with the Department of Justice.
I wanted to drop a note regarding the headline on TPM today, and the accompanying link to a Newsweek article regarding the report on the work by Yoo and Bybee (and others) on the "torture memo" put out by the Office of Legal Counsel during the Bush Administration.
The content of the memo and the articles speak for themselves, but I do hope beyond hope that those progressives who were quick to beat the drum that the Obama administration, and Attorney General Holder specifically, had sided with the Bush Administration on--depending on where you read it depended on how it was phrased--"justice for torture victims" and "torture policy" and "state secrets for torture techniques."
I am inside the DOJ, and I can tell you that when the DOJ attorney stood before the Ninth Circuit and said that the Department would stand by the assertion of the state secrets privilege in that case, he meant what he said: that the Department would stand by the assertion of the states secret privilege in that case. That was the position he was told to take, but people mistakenly conflate the position a trial attorney is told to take at a particular moment under particular circumstances as the assertion of broad policy by the Department regarding torture and/or state secrets, world without end, amen.
The assertion was made given a particular case at a time of transition. The AG had been in place all of a week or so by the time the trial attorneys were preparing for their arguments before the Niners. There were at that time (and remain, I believe) no deputies beneath Holder. You are talking about a Department operating at this moment largely under the guidance of attorneys in the civil service who are not political appointees, and who would not dare to create policy lest their decisions tie the hands of the political appointees who will take their seats in short order (I should note that the civil service attorneys in the Department are stunningly committed to the cause of Justice here, and to do so in consultation with colleagues in an effort to understand and apply the law, regardless of political ideology and belief. Which is why the last 8 years have been so demoralizing).
So when I saw the representation made by the trial attorney, followed by a statement from the DOJ and the White House that the assertion of the states secrets privilege would be reviewed, I understood that position to mean that until it was up and running, the position would be a safe placeholder position until Politicals (i.e., the political appointees) were in place and policy could be set.
Because, you see, it is far, far easier to later waive the privilege if you decide it is unwarranted than it is to assert a privilege you have stood up and waived.
The trial attorney did the right thing in the Boeing case; the acting associate and acting deputy AGs did the right thing in taking a prudent course that would not tie this Administration's hands in the future (while leaving open the possibility in a change in the assertion of the privilege). The cautious approach is the correct one.
I hope that this latest revelation shows that progressives need to stop, chill, think, and maybe have a little patience before concluding from one action taken in a limited manner at a time of transition does not portend the shape of policy for an entire presidency. There are practical personnel and staffing matters that had more to do with this than anything. The DOJ memo lambasting Yoo and Bybee is but the first of items that will show that the Obama administration--and this Department--are likely to implement changes that will establish clear policy and procedural differences between this administration and the last.
Chill out. Be patient. Stay tuned.
I wanted to drop a note regarding the headline on TPM today, and the accompanying link to a Newsweek article regarding the report on the work by Yoo and Bybee (and others) on the "torture memo" put out by the Office of Legal Counsel during the Bush Administration.
The content of the memo and the articles speak for themselves, but I do hope beyond hope that those progressives who were quick to beat the drum that the Obama administration, and Attorney General Holder specifically, had sided with the Bush Administration on--depending on where you read it depended on how it was phrased--"justice for torture victims" and "torture policy" and "state secrets for torture techniques."
I am inside the DOJ, and I can tell you that when the DOJ attorney stood before the Ninth Circuit and said that the Department would stand by the assertion of the state secrets privilege in that case, he meant what he said: that the Department would stand by the assertion of the states secret privilege in that case. That was the position he was told to take, but people mistakenly conflate the position a trial attorney is told to take at a particular moment under particular circumstances as the assertion of broad policy by the Department regarding torture and/or state secrets, world without end, amen.
The assertion was made given a particular case at a time of transition. The AG had been in place all of a week or so by the time the trial attorneys were preparing for their arguments before the Niners. There were at that time (and remain, I believe) no deputies beneath Holder. You are talking about a Department operating at this moment largely under the guidance of attorneys in the civil service who are not political appointees, and who would not dare to create policy lest their decisions tie the hands of the political appointees who will take their seats in short order (I should note that the civil service attorneys in the Department are stunningly committed to the cause of Justice here, and to do so in consultation with colleagues in an effort to understand and apply the law, regardless of political ideology and belief. Which is why the last 8 years have been so demoralizing).
So when I saw the representation made by the trial attorney, followed by a statement from the DOJ and the White House that the assertion of the states secrets privilege would be reviewed, I understood that position to mean that until it was up and running, the position would be a safe placeholder position until Politicals (i.e., the political appointees) were in place and policy could be set.
Because, you see, it is far, far easier to later waive the privilege if you decide it is unwarranted than it is to assert a privilege you have stood up and waived.
The trial attorney did the right thing in the Boeing case; the acting associate and acting deputy AGs did the right thing in taking a prudent course that would not tie this Administration's hands in the future (while leaving open the possibility in a change in the assertion of the privilege). The cautious approach is the correct one.
I hope that this latest revelation shows that progressives need to stop, chill, think, and maybe have a little patience before concluding from one action taken in a limited manner at a time of transition does not portend the shape of policy for an entire presidency. There are practical personnel and staffing matters that had more to do with this than anything. The DOJ memo lambasting Yoo and Bybee is but the first of items that will show that the Obama administration--and this Department--are likely to implement changes that will establish clear policy and procedural differences between this administration and the last.
Chill out. Be patient. Stay tuned.
