Where Are the Other Memos?
By: emptywheel Tuesday March 3, 2009 10:59 am
.................
The Loopholes Remaining and the Outstanding Memos
Now, I consider these Bradbury comments
very troubling given the memos that DOJ did not turn over.But they've still just
released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury's two "no harm no foul" opinions).
Where are the other memos? Why weren't they released yesterday? Is it because they're still active (and supporting torture and illegal wiretapping and whatnot??)http://www.aclu.org/safefree/general/asset_upload_file655_38486.pdfThe question is especially pertinent given a few things Bradbury said in his
January 15, 2008 "no harm no foul" opinion.To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.
The federal prohibition on torture ... is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President's Commander in Chief authority.
..................
January 15, 2008 "no harm no foul" opinion.
"The President, like all officers of the Government,
is not above the law."
He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says,
"We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President's ability to fulfill his essential responsibilities under Article II."
To Teddy Kennedy: The torture ban is constitutional and the President is not above the law. In that memo, he reproduced a statement that he--Steven Bradbury--made to Teddy Kennedy at a time when he was angling for a promotion to head OLC, which made it seem that he--Steven Bradbury--
absolutely believed the President had to abide by Congressional laws prohibiting torture. Then, in his memo from this
January, he seems to dramatically limit the statement he made publicly to Kennedy--as much as saying the President is not above the law unless laws have been passed to "frustrate the President's ability to fulfill his essential duties." The "Presidential frustration" loophole (as I'll call it) is enough to raise some concerns.
...................
In other words,
the memos released yesterday do as much to point to the loopholes that they've exploited to be able to keep torturing as they reveal any big reversal from those policies. more at:
http://emptywheel.firedoglake.com/2009/03/03/where-are-the-other-memos/
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