The very complicated issue of political independence at the DOJ

After the release of more DOJ torture memos last week, President Obama said that he would not prosecute the CIA interrogators who carried out the Bush administration's orders. Keith Olbermann and other commentators interpreted Obama's statement broadly, taking it to mean that there would be no prosecutions related to the torture issue whatsoever. My initial take on it was that this interpretation of the President's comments was a little too broad, although I understood the point Olbermann et. al. were making - that prosecutions of the federal employees who actually committed the torture would probably be the most straightforward way to bring their superiors (who created/approved the interrogation policies) into court.

Today, Obama provided a clarification on this issue:

"For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted.

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there." [Marc Ambinder]

So he wasn't saying that prosecutions are off the table. That said, there are problems with the AG being "the decider" (to use a Bushism). One of the main reasons Obama has been hesitant about investigations or prosecutions of Bush officials is that he wants to avoid the appearance of partisanship. And while Attorney General Holder is serious about restoring the DOJ's political independence, he remains one of Obama's most visible appointments, and one of the most visible examples of the "Change" Obama promised. If Holder calls for prosecutions of members of the administration whose record Obama won by running against, it could create the (wholly unfair) perception that he is Obama's Alberto Gonzales.

What's especially frustrating about the situation is that the Bush DOJ's lack of political independence probably makes it even harder for the Obama DOJ to undertake controversial prosecutions without appearing unduly politicized. After eight years of the DOJ being run by yes men, some Americans might just assume that the attorney general is supposed to base prosecutorial decisions on the President's political agenda - and would not draw any distinction between Holder and Obama.

That's at least one of the "very complicated issues" Obama faces when it comes to torture prosecutions. Another issue may be the fear that prosecuting members of a previous administration over their policies could set a dangerous precedent, inviting payback in the form of prosecutions by a subsequent Republican administration. It isn't hard to imagine that line of argument: "they weren't satisfied with beating us in the 2008 election, they had to rub it in by prosecuting us over the policies they didn't agree with. If they can, why can't we?" I'm not suggesting that the Obama administration will do anything as controversial or illegal as the Bush administration's torture program, but I have a feeling that wouldn't stop the GOP from trying (see Clinton impeachment).

Increasingly, some kind of congressional investigation or 9/11 Commission-style blue-ribbon panel investigation looks like a better option for the Obama administration, and the President sounded more open to the idea today than he has before, saying that any congressional investigation would need to be carried out in a "bipartisan fashion." [Bloomberg] The only problem with that is that the GOP leadership hasn't shown much interest in throwing the Bush administration under the bus, aside from saying that Bush strayed from the party's fiscal conservatism.

Which surprises me, to be honest. As it stands now, everyone my age (31) and younger will permanently associate the GOP with Bush, Cheney, Rumsfeld, et. al. And the GOP's core strategy - repeating the same old platitudes about Reagan - is not going to make the association between their party and the Bush administration go away. Reagan was out of office by the time I was twelve, and moreover, most of his big ideas have been proven wrong in the twenty years since then.

If the Republican leadership has any interest in competing nationally again, the smartest thing they could do right now would be to take an active role in a bipartisan investigation of pre-Iraq intelligence and torture - making it clear that those were the Bush administration's policies, not theirs, and that we are wrong for lumping them in with people who would lie about something as serious as the rationales for starting a war our friends and classmates would fight, or would put the United States on the "countries that torture" list alongside serial human rights violators like China and Syria. Until the GOP throws the Bush administration under the bus, Bush will still be in the driver's seat, with Cheney riding shotgun.

UNC Chancellor issues statement on Tancredo protest

On Monday night, former Congressman and anti-immigration activist Tom Tancredo spoke at an event at UNC-Chapel Hill, sponsored by a student group called Youth for Western Civilization. Tancredo was brought in to give a speech against illegal immigrants receiving in-state tuition at state schools.

Protesters interrupted his speech almost as soon as he started talking, and things got completely out of hand: some students blocked Tancredo from sight with a 12-foot banner, and someone even broke a window. Police used pepper spray in response, and threatened to use Tasers.

As a UNC graduate who disagrees with most of Tancredo's political views, including his perspective on immigration policy, I find it very troubling that he was not even allowed to speak. Don't get me wrong - I am not criticizing anyone for protesting, marching, or even holding up contrarian signs during a speech (as long as the signs don't block anyone's view of the speaker). But there's a big difference between protesting and physically blocking someone from view, shouting him down while he's trying to speak, and pounding on a window until it shatters.

If I had to pick the one overriding reason I consider myself a moderate or a moderate liberal, it would be that I can't stand the tendency among the far left to demonize everyone who disagrees with you. In that mindset, there's an exemption to the free speech rights the rest of us enjoy: all you have to do is label someone else's point-of-view as "hate" and your disruption of free speech is not only exempted, it's sanctified. I wish a widely-respected liberal constitutional rights expert like Glenn Greenwald would weigh in on this one.

Earlier this evening, UNC Chancellor Holden Thorp issued a statement on the Tancredo incident to members of the General Alumni Association, and I think he said exactly what needs to be said:


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Dear Carolina alumni and friends,

Many of you have heard or read about a protest on campus Monday night, and I'm writing to share with you the message I sent yesterday to our campus community. I think you will find that the message speaks for itself. But if you have any questions or concerns, please let me know.

Sincerely,

Holden Thorp, Chancellor


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Message from the Chancellor: Free Speech at Carolina (April 15, 2009)

Dear Students, Faculty and Staff:

I want to express how disappointed I am in what happened last night when former Congressman Tom Tancredo wasn't able to speak when a protest got out of hand, and our Department of Public Safety had to take action. Congressman Tancredo felt threatened and left without making his remarks.

Mr. Tancredo was scheduled to speak about immigration. We expect protests about controversial subjects at Carolina. That's part of our culture. But we also pride ourselves on being a place where all points of view can be expressed and heard. There's a way to protest that respects free speech and allows people with opposing views to be heard. Here that's often meant that groups protesting a speaker have displayed signs or banners, silently expressing their opinions while the speaker had his or her say. That didn't happen last night.

On behalf of our University community, I called Mr. Tancredo today to apologize for how he was treated. In addition, our Department of Public Safety is investigating this incident. They will pursue criminal charges if any are warranted. Our Division of Student Affairs is also investigating student involvement in the protest. If that investigation determines sufficient evidence, participating students could face Honor Court proceedings.

Carolina's tradition of free speech is a fundamental part of what has made this place special for more than 200 years. Let's recommit ourselves to that ideal.

Sincerely,

Holden Thorp

FOIA lawsuit vs. the State Department

On March 26, 2009, I filed a Freedom of Information Act lawsuit against the State Department in federal court, to try to force the agency to disclose some pre-Iraq War planning documents. Specifically, the main document I'm after is the "chinese menu" of possible rationales for invading Iraq which was created by the Pentagon's Office of Special Plans, and was presented by Scooter Libby to Colin Powell and other administration officials on January 25, 2003. Page 297 of Bob Woodward's Plan of Attack says that "Libby provided a 60-page version of the case - some 50 percent more than the CIA paper - which he viewed as a kind of Chinese menu fom which Powell could select."

I have been trying to get this document released since 2006, mostly through FOIA requests submitted to the Defense Department. In February, I renewed my efforts with new requests to the Defense and State Departments (while Pentagon employees created it, Powell and other former State Department officials were the recipients of the document, so it should be in their files). The DOD responded within the 20-day statutory period, but the State Department failed to respond, which triggered a cause of action in district court under FOIA (5 U.S.C. 552(a)(4)(B), to be specific).

In addition to asking the court to compel the State Department to release the document and other related documents, the lawsuit also asks the court to grant me FOIA's "representative of the news media" fee waiver, which means that processing fees related to this request would be waived. Under FOIA, media outlets do not have to pay these fees, and the Open Government Act of 2007 amended FOIA to clarify that the "representative of the news media" fee waiver is intended to include citizen journalists and/or bloggers who can show that they gather information, create a distinct work, and distribute that work to an audience (Congress didn't use the "b"-word in the law itself, but Senator Leahy, who introduced it, specially talked about bloggers in his floor statement just prior to the passage of the bill). Based on my research, I have not been able to find any instances of a blogger getting the news media waiver, and one goal of mine is to provide an example of how other bloggers can successfully request the waiver.

Anyway, now the ball is in the State Department's court to provide an answer to my complaint, and that should be forthcoming in the next week or two. I will be providing updates once things get moving.