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A Question of Torture

Barack Obama’s recent nominations to the Department of Justice’s Office of Legal Counsel (OLC) and other pressures have led some media organizations to question whether an executive order against torture may be one of the new president’s initial policies.

The National Religious Campaign Against Torture (NRCAT) launched a campaign to pressure President Obama to issue an executive order (EO) to countermand George W. Bush’s EO 13440 by January 20th; with no EO, the coalition is now counting the days until it’s issued.

And the Obama team is paying attention. As New York Times writer Laurie Goodstein reported on January 14, “Leaders of the coalition [NRCAT] met with officials from the Obama transition team on Wednesday afternoon and emerged saying they were optimistic about the prospects for such an order.”

“He gave every indication that it’s going to happen, not necessarily on Day 1, but that it’s going to happen…So we’re encouraged. We still believe that it would be a very, very important statement to the nation and the world, were it to take place on Day 1,” Goodstein quoted NRCAT’s president, Linda Gustitus.

However, Goodstein wrote, “Officials in Mr. Obama’s transition office declined to comment on whether an executive order would be coming.”

An article released by CNN on January 19th, citing unnamed Obama aides, reports the continued possibility of such an executive order: “In addition to an executive order closing the U.S. military prison at Guantanamo Bay, Cuba, aides said the incoming president is considering another executive order that would specifically ban the use of torture on terror suspects.”

Slate Magazine’s Emily Bazelon and Chris Wilson cite EO 13440 in their “Ten to Toss” article as the third of ten executive orders that “Obama should scrap immediately.” They assert that “The [Bush] administration’s record is so tarnished on this score that the next president should declare that he is scrapping this order, so he can start over and come up with his own policy on interrogation and the CIA.”

Obama’s nominee for Attorney General, Eric Holder, also defines water-boarding as torture. He told Senate Judiciary Committee Chairman Patrick Leahy (D-Ver.) on January 16 that “If you look at the technique used by the Khmer Rouge, used in the [Spanish] Inquisition, used by the Japanese and prosecuted by us as war crimes—we prosecuted our own soldiers for using it in Vietnam. I agree with you, Mr. Chairman, water-boarding is torture.”

This new policy might just be informed by NRCAT’s “Declaration of Principles,” which includes:

– “bar[ring] the use of interrogation techniques which we would not
believe to be acceptable if used against fellow Americans,”

– “Creat[ing] one national standard for all U.S. personnel for
the interrogation and treatment of prisoners,”

– “acknowledg[ing] all detainees to the International Committee of the Red Cross (ICRC) and
allow the ICRC access to them”

– “Requir[ing] that we allow all detainees to have access to our
courts and provide them with the opportunity to defend

– “Bar[ring] rendition for torture,”

– “Provid[ing] for transparency in our confinement and
interrogation procedures, including the videotaping of all
interrogations,” and

– holding “accountable” any “U.S. official who authorizes,
implements, or fails to prevent the use of torture” (emphasis added).

(This correspondent learned of NRCAT when a flier outlining these demands and the “Prayer for an End to U.S.-Sponsored Torture” made it into the Church bulletin).

In addition to Holder’s nomination, Obama’s decision to nominate Georgetown Law Professor Martin Lederman, a former Clinton appointee, as Deputy Assistant Attorney General at the OLC solidifies the new administration’s stance on torture.

Blogging for Balkanization, Professor Lederman asserted in June 2008 that “John [Yoo’s] legal advice, then, was a fairly direct cause—certainly a necessary cause—of the abuse in Iraq in 2002 and 2003,” and criticized what he sees as legal inconsistencies in Yoo’s 2008 Senate Judiciary Committee testimony. Two other nominees for the OLC are Harvard Law Professor David Barron and Indiana University Law professor Dawn Johnsen, both former Clinton officials.

Professor Johnsen, who has been nominated to head the OLC, served as legal director for the National Abortion and Reproductive Rights Action League [NARAL] before joining the Clinton Administration in 1993 and is affiliated with the American Civil Liberties Union’s “Reproductive Freedom Project.” She has strongly opposed Yoo’s memoranda on torture, writing for Slate in April 2008, “Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it—all demand our outrage.”

“Clearly what we need to do is restore OLC’s tradition of independence and integrity and a few years ago I worked with eighteen other former OLC lawyers to try to do just that. We were appalled at the first torture memo and so we sought to develop a set of principles that could help prevent that sort of terribly corruptive legal advice given in the future,” Johnsen told the American Constitution Society for Law and Public Policy in 2007.

Since the purpose of the OLC is to provide legal guidance to the executive branch, Johnsen’s confirmation could also help the Obama Administration in reshaping presidential policy toward abortion. In 2006, Professor Johnson argued in Slate that the question of whether Justice Samuel Alito would overturn Roe v. Wade was beside the point because “at least in the short run, he is more likely to heed the advice he offered as a lawyer in the Reagan Department of Justice and hollow it out.”

“The notion of legal restrictions as some kind of reasonable ‘compromise’—perhaps to help make abortion ‘safe, legal and rare’—thus proves nonsensical,” she later argued. “For the woman denied access, the deprivation is absolute: Either a woman can get a safe and legal abortion, or she cannot. For her, a possibly urgently needed abortion is not ‘rare,’ it’s impossible.”

Bethany Stotts is a staff writer at Accuracy in Academia.