In this issue:

• Senate questions FBI abuses as bureau seeks further expanded powers
• BORDC News
  • Hartford city council considers groundbreaking civil rights reforms
  • BORDC events highlight government assaults on civil liberties and communities of color
  • Steve Abrams joins BORDC board of directors
  • BORDC seeks school-year interns
• Grassroots News
  • Patriot Award: Zeenaz Ali
  • Chicago activists seek support for anti-torture legislation
  • Get involved in the People’s Campaign for the Constitution
• Law and Policy
  • Eight years after the torture memos: an unhappy anniversary
  • Portions of Arizona’s controversial immigration law are enjoined before taking effect
  • Read the latest news and analysis on our blog
• New Resources and Opportunities
  • Tools for activists now available in Spanish
  • Film: The Response
  • Book Review: The Body in Pain by Elaine Scarry

Last week marked the eighth anniversary of memos written by Justice Department lawyers to authorize cruel, inhumane, and degrading treatment of detainees. The Bush administration’s abuses were the beginning of a dismal chapter in American history. This unhappy anniversary offers a sad reminder that this chapter remains open.

To restore executive accountability, the Obama administration must direct the Defense Department to disclose its evidence of torture, and allow the Attorney General to enforce the law equally by prosecuting up the chain of command.

To its credit, the Obama administration has repudiated “coercive interrogation” methods, taking a step forward from the abject illegality of its predecessor. This improvement, however, belies an enduring commitment to many of Bush and Cheney’s abuses, including pervasive surveillance, arbitrary detention, and executive secrecy.

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In closed-door testimony before the House Judiciary Committee on May 26, former Bush Assistant Attorney General Jay Bybee commented on the highly controversial torture memos that he co-authored.

In a transcript released by House Judiciary Committee Chairman, John Conyers, Bybee informed the committee that the Justice Department did not have full knowledge of the interrogation practices.

The Judiciary Committee released a fact sheet summarizing key revelations from the interview. Some main points include John Yoo’s close relationship with the White House and his disclosure of secret White House “war planning” meetings, Bybee’s inaction to ensure that Yoo preserved his OLC emails when he worked for Bybee, and Bybee’s statement that “in terms of the analysis, I am going to stand by the memo.”

In his testimony, Bybee defended his role in the torture memos and said he was “proud of our opinions” at the Office of Legal Counsel, too, calling them “well researched” and “very carefully written.”

Jameel Jaffer, Deputy Legal Director of the ACLU commented:

Judge Bybee’s testimony underscores what we’ve been saying for a long time: that the Justice Department should be conducting an investigation that encompasses not just low-level interrogators but senior government officials who authorized torture.

Join BORDC in the effort to hold government officials who authorized torture accountable.

This month, Steve Sheppard wrote an article for FindLaw on the torture lawyers and the OPR report that exonerated them.

Last month, Associate Deputy Attorney General David Margulis tried to bar any punishment for the government lawyers whose official opinions falsely claimed that U.S. agents and soldiers could legally use techniques amounting to torture on people in U.S. custody. His decision protects the masterminds of policies that have sent U.S. soldiers to prison. It gives office lawyers the kinds of excuses that are denied even to police on the ground. It stands against fifty years of U.S. policy against terrorism. It exposes U.S. servicemen and servicewomen to a greater risk of torture by our enemies, and it weakens our position with our allies in the fight against terrorism.

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• 3/15, Spencer Ackerman, Washington Independent, More McCarthyism From Liz Cheney’s Crew
• 3/15, Emptywheel, The Torture Apologists Ratchet Up the Attack
• 3/15, Glenn Greenwald, Salon, Salon Radio: Manipulative use of the term “Terrorism”
• 3/15, Eric Lichtblau, New York Times, Report Faults U.S.’s Efforts at Transparency
• 3/15, Eugene R Fidell, Politico, Why New York’s the right place to try Sept. 11 cases
• 3/14, Agence France-Presse, Justice Department witchhunt backfires in US
• 3/14, Andy Worthington, TruthOut, What Torture Is and Why It’s Illegal and Not “Poor Judgement”

ATruthout article by Andy Worthington asserts that although it has been several weeks since David Margulis of the Department of Justice cleared John Yoo and Jay Bybee of accountability, “this is a story of such profound importance that it must not be allowed to slip away.”

In his pieced, “What Torture Is and Why It’s Illegal and Not “Poor Judgment,” Worthington dissects the claims and reasoning used by Yoo and Bybee in the torture memos and exposed the number of ways in which it they are unfounded and contradictory.

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In response to the recently released Office of Professional Responsibility report, John Yoo and Jay Bybee defended themselves by reasoning that if they were to be held accountable for the torture memos, then it would only be fair to also hold all the other executive branch lawyers who approved torture accountable.

In his response to the report Bybee even provided a list of 17 lawyers that approved torture, along with extensive descriptions of the approval top officials gave to enhanced interrogation techniques. Bybee provides detailed descriptions of various top level meetings that important Bush advisors attended in which torture was discussed without objection.

The OPR report has edited out most of the discussions of the meetings detailed in Bybee’s response.  The Emptywheel article reporting on this poses an interesting question: “If DOJ has decided this was all sloppy but not legally sanctionable, then why is our government still hiding complicity of the torture gang?”

It seems like Yoo and Bybee are attempting to play “he said she said” to disperse blame, when in actuality that entire list of officials, along with perhaps a couple more (Bush and Cheney), must face consequences for their illegal and unethical actions.

Rep. Jerrold Nadler (D-NY) has approached the state bars where John Yoo and Jay Bybee are licensed and has asked for their consideration of disbarment proceedings.

Nadler proposes,

These states do not need a referral from the Department of Justice in order to interpret and enforce the standards of professional responsibility and ethics against their members.

However, Georgetown Law Professor David Luban’s post at Slate says that this is a very iffy proposition.

Earlier today, members of the Senate Judiciary Committee held a hearing to examine whether former Office of Legal Counsel lawyers had violated professional ethics standards in advising the previous administration on interrogation and torture.  The hearing followed on the heels of a report issued by the Department of Professional Responsibility, the ethics oversight division of the Department of Justice.  The primary focus of this report were former Office of Legal Counsel lawyers John Bybee and John Yoo.

While only four Senators were in attendance, the views espoused on the matter were widely varied.  Chairman Patrick Leahy led the call for further inquiry into the matter.  Sen. John Sessions questioned the conduct of the OPR during the investigation and suggested they might not be the right body to continue the investigation.

Chairman Leahy released a statement in conjunction with the hearings.  In this statement, he makes the point that not only did these lawyers propose questionable legal arguments, they did so in order to cover the Executive’s bases.  Essentially they were searching out ways to legitimize questionable and illegal actions that were already in progress.  Leahy writes,

These legal memoranda were designed to achieve an end.  That is not what the Office of Legal Counsel should do, nor had done in other administrations.  These Bush Administration lawyers lost their way.

Yesterday, the Alliance for Justice sponsored a thought-provoking panel discussion in Washington, DC, to discuss what will happen “After the OPR Report.”

Georgetown law professor David Cole suggested that “keeping this issue in the public eye is critical,” despite today’s consensus among federal institutions to allow torture with impunity. Columbia law professor and Harper’s editor Scott Horton agreed that, in the wake of recent events, “citizen advocacy is extremely important.”

Cole specifically cited BORDC and commended our work organizing local support for accountability. He explained that while our government’s various institutions may have constructed a narrative supporting “the lesson that Dick Cheney wants”—that federal executive officials can violate federal statutes, international law, and the Constitution without incurring any consequences—history will be constructed by civil society over time.

For instance, Cole observed, it took the federal government 40 years to finally apologize in 1988 for the WWII-era Japanese internment and the Korematsu decision that authorized it. Yet, until the Bush administration resurrected arbitrary detention without trial, sustained grassroots pressure forced its universal repudiation. Similarly, a grassroots movement to restore human rights today can compel the appropriate (and previously settled) lesson that torture is wrong. Period.

American University law professor William Yeomans reiterated this point, observing that “the administration lost an opportunity. It was silent for a long time on these issues,” allowing proponents of Cheney’s view to shift popular attitudes. Because few voices in government “carr[ied] the other side of the historical debate,” they essentially “ceded the field,” resulting in the measurable shift in public opinion concerning the legitimacy of torture: President Bush consistently disclaimed torture, whereas Cheney now openly champions it as a policy.

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