Former OLC chief OK with criminal inquiry

11/03/09: BLT reports that a former acting chief of the Justice Department’s Office of Legal Counsel said today he is “not opposed” to a criminal investigation of the office, which was at the center of the Bush administration’s internal debate about torture.

10/29/09: The Program on Law and Government at American University's Washington College of Law will host "The Torture Memos: Lawyers, Ethics, and the Rule of Law," where Senator Sheldon Whitehouse will deliver a keynote address and the Alliance for Justice will showcase Tortured Law.  The panel includes Nan Aron, President of Alliance for Justice; Daniel Levin, former Acting Attorney General at the Office of Legal Counsel; David Luban, Acting Director of the Georgetown Center on National Security and the Law; Stuart Taylor Junior, columnist for the National Journal and Contributing Editor of Newsweek; and Stephen Vladeck, Professor of Law at Washington College of Law. The program will take place on Tuesday, November 3, 2009 from 9:00 a.m. to 12:15 p.m. in Room 603 at Washington College of Law. Interested participants may register for the event for free, or may opt for two CLE credits for $35.

09/19/09: The Center for the Study of the Legal Profession and the Georgetown Center on National Security and the Law are co-hosting a discussion of Professor David Cole's new book, The Torture Memos: Rationalizing the Unthinkable. The event will take place from 3:00pm to 5:00pm on October 7, 2009 at the 12th floor of the Gewirz Student Center at the Georgetown Law Campus. Check the calendar for details.

08/31/09: CNN reports that former Vice President Dick Cheney on Sunday said his claim that enhanced interrogation techniques -- including waterboarding -- produced critical post-9/11 information was supported by a pair of intelligence reports released last week. However, the two dossiers that were declassified at Cheney's request do not disclose what kinds of techniques were used to elicit the intelligence. The only method occasionally cited by the reports is a routine one -- using information from one detainee to gain details from another.

08/31/09: CNN also reports that an Obama administration official, who asked not to be identified, said former Vice President Dick Cheney had his facts wrong when he blasted Attorney General Eric Holder last week for launching an investigation into past CIA interrogation techniques, "the attorney general made a determination independently, based on the facts and the law."

05/15/09: Politico reports that White House press secretary Robert Gibbs is blaming an executive order signed by former President Bush for the denial of former Vice President Dick Cheney's request for declassification of two memos he says show that important intelligence was obtained from aggressive interrogation techniques some have described as torture. "The CIA is the agency that has jurisdiction over this," said Gibbs. "They made the decision, in all honesty, based on an executive order from the Bush administration, which under the type of request that Vice President Cheney made, precludes these being declassified because they're part of ongoing litigation. The executive order updated in the Bush administration precludes their release."

05/14/09: CNN reports that the CIA has rejected former Vice President Dick Cheney's request to declassify records of abusive interrogations of suspected terrorists. The two documents Cheney requested are the subject of two pending lawsuits seeking the release of documents related to the interrogation program and cannot be declassified. The former vice president will appeal the ruling. Cheney has said he wants the documents released so there can be a more "honest debate" on the Bush administration's approval of "alternative" interrogation techniques against suspected terrorists.

05/14/09: The New York Times, The Washington Post and Jurist report that in the first hearing before the Senate Judiciary Committee on whether Bush administration interrogation techniques constituted torture, Georgetown Law professor David Luban called memos on enhanced interrogation methods "an ethical train wreck." The Miami Herald reports that former FBI interrogator Ali Soufan called the techniques "ineffective, slow and unreliable." Former Counselor of the Department of State and executive director of the 9/11 Commission Phillip Zekilow testified about the memo opposing the techniques that he wrote which was recouped and destroyed.  St. Mary's law professor Jeffrey Addicott testified that none of the enhanced interrogation techniques meet the internationally accepted definition of torture. Slate analyzes Sen. Lindsay Graham's position that the Bush administration "saw the law as a nicety we could not afford."

05/11/09: The LA Times reports that when President Obama decided to release the latest "torture memos" describing sleep deprivation, a flurry of appeals from the CIA ensued, including from former CIA Director Michael Hayden.  Sleep deprivation, prohibited by President Obama in January, was used to help break dozens of suspected terrorists, far more than the most violent approaches. The technique was among the methods the agency fought hardest to keep, both because of its effectiveness, and the perception that it was less objectionable than waterboarding, head-slamming or forced nudity.  As a result, sleep deprivation may be seen as a tempting technique to restore. At one point, the agency was allowed to keep prisoners awake for as long as 11 days; the limit was later reduced to just over a week.

05/10/09:  The Washington Post reports that, to assess whether interrogators complied with the department's guidance, Senate intelligence committee investigators are interviewing those involved, examining hundreds of CIA e-mails and reviewing a classified 2005 study by the agency's lawyers of dozens of interrogation videotapes.  Attorney General Eric H. Holder Jr. has not ruled out conducting a similar investigation.

04/30/09: The LA Times reports that Obama acknowledged yesterday that the harsh interrogation techniques he has banned might have yielded useful information, but that he was nonetheless willing to rule them out on moral grounds. It was a nuanced performance as Obama walked viewers of his prime-time news conference through a policy that has led him to declare tactics such as waterboarding torture but to stop short of advocating prosecution of the architects of the practices. He conceded that "it may be harder" to get information, but what "makes us, I think, still a beacon to the world is that we are willing to hold true to our ideals, even when it's hard, not just when it's easy."

04/28/09: The Financial Times has an editorial piece arguing that while torture should never be used, prosecution of Bush administration officials is possible but not guaranteed, and "US reverence for the law can sometimes be a trap." The piece argues that the law simply took is course in the Monica Lewinsky scandal, and in the end regard for the law was the principal victim.

04/28/09: The Washington Post has an opinion piece arguing that while it is good that we no longer torture, it will not make us safer. Rather, America should repudiate torture not because it is always ineffective or because others loathe it, but because it degrades us and runs counter to our national values. It is a statement of principle, somewhat similar to why we do not tap all phones or stop and frisk everyone under the age of 28. Those measures would certainly reduce crime, but they are abhorrent to us.

04/28/09: The New York Times reports that ABC's 2007 interview of former CIA officer John Kiriakou had a large impact on the torture debate, despite Kiriakou's claims being unverified. Kiriakou participated in the capture of the suspected terrorist Abu Zubaydah and said that waterboarding worked on Zubaydah and yielded results very quickly, which has been contradicted by a recently released OLC memo. Kiriakou's claims quickly ricocheted around the media, despite being unverified and despite his lack of firsthand knowledge about the waterboarding. 

04/28/09: The Christian Science Monitor reports that Republican Rep. Peter Hoekstra, the top Republican on the House intelligence Committee is seeking full disclosure about who on Capitol Hill knew about the US interrogation methods. HT to How Appealing.

04/28/09: Balkinization blogger Brian Tamanaha argues that OLC lawyers must not be scapegoats on torture. The OLC lawyer's job is to give advice as to legality, not as to whether something is good policy.  The key question here, however, is whether this was "just" bad legal advice, or whether it involved active participation by OLC lawyers in the violation of U.S. laws against torture. If the latter occurred, then a criminal investigation would help future administrations by serving as a reminder that the government must act within the limits of the law, and by reaffirming that it is the special job of OLC lawyers to make sure this happens. It is about deterring lawyers from facilitating lawbreaking at the highest levels of government. A criminal investigation into the actions of the OLC lawyers is required not because our country has engaged in torture. Ultimately, it’s about preserving the integrity of our system of law.

04/27/09: The Washington Post reports that White House officials were confronted yesterday with more questions about President Obama's position on prosecution of former Bush lawyers who drafted memos legalizing harsh interrogation methods used on terrorism suspects. Obama advisers sought to portray the president as constitutionally removed from the question of whether anyone should be prosecuted for breaking the law. Robert Gibbs and Valerie Jarrett both said that those who followed the DOJ's legal advice in good faith should not be prosecuted, and that the rest would be left up to the Attorney General.  "The president doesn't open or close the door on criminal prosecutions of anybody in this country because the legal determination about who knowingly breaks the law in any instance is not one that's made by the president of the United States," said Gibbs.

04/27/09: The Washington Post has an opinion piece by Michael Gerson arguing that an unintended consequence of revealing the context and care of the interrogation decisions is that it has made them more understandable, not less. The memos disclose not a slippery slope toward abuse, but a government struggling with worries even after immense provocation; a government convinced that new attacks were imminent but still weighing the rights of captured murderers, drawing boundaries to prevent permanent injury during questioning, well aware of the laws regarding torture and determined not to violate them.

04/27/09: The Chicago Tribune has an opinion piece by Kathleen Parker arguing that if one must pose the question of whether something is torture, it probably is. 

04/27/09: The Philadelphia Inquirer has an opinion piece by Jon B. Eisenberg who argues that the recent release of the Department of Justice's "torture memos" is a good occasion to revisit the account of the Nazi Adolf Eichmann's trial. The CIA wanted assurance that the techniques would not violate laws against torture in interrogating Abu Zubaydah. Bybee provided that assurance in a chillingly detached memo.  Arendt's account of the Eichmann trial was the same: "such remoteness from reality and such thoughtlessness can wreak more havoc than all the evil instincts taken together which, perhaps, are inherent in man."

04/26/09:  The Washington Post features an opinion piece by Michael Scheuer in which he writes, "Americans should be clear on what Obama has done. In a breathtaking display of self-righteousness and intellectual arrogance, the president told Americans that his personal beliefs are more important than protecting their country, their homes and their families. The interrogation techniques in question, the president asserted, are a sign that Americans have lost their 'moral compass,' a compliment similar to Attorney General Eric Holder's identifying them as 'moral cowards.' "

04/25/09:  Jurist reports that UN special rapporteur on torture Manfred Nowak said Friday that the US must prosecute DOJ lawyers who drafted four recently released top secret memos, which outlined controversial CIA interrogation techniques and their legal rationale.  Nowak said the US is obligated by the UN Convention Against Torture, which requires prosecution in all cases in which there is evidence of torture.  Nowak emphasized that this demonstrates complicity or participation as stated in the convention. If the US does not prosecute the memo drafters,  Nowak insisted that other countries party to the convention have a duty to do so under the concept of universal jurisdiction.

04/25/09:  The Washington Post features an opinion piece by Mark Danner in which he argues, "However much we would like the scandal to be confined to the story of what was done in those isolated rooms on the other side of the world where interrogators plied their arts, and in the air-conditioned government offices where officials devised 'legal' rationales, the story includes a second narrative that tells of a society that knew about these things and chose to do nothing."

04/25/09:  The Washington Post features an opinion piece by Walter Pincus in which he argues that, "more than seven years after al-Qaeda's assault on the United States, memories of the fear and pandemonium in Washington have faded, replaced by heated debates over torture, prosecutions and truth commissions. Tenet could write with confidence that the inevitable disclosure of the CIA's program would generate such reactions in Congress and among the public because it has happened to the CIA many times before -- each with devastating effects on the agency."

04/24/09:  The Washington Post reports that as President Obama met with top advisers on the evening of April 15, he faced one of the sharpest policy divides of his young administration. 

• Five CIA directors -- including Leon E. Panetta and his four immediate predecessors -- and Obama's top counterterrorism adviser had expressed firm opposition to the release of interrogation details in four "top secret" memos in which Bush administration lawyers sanctioned harsh tactics. 
• On the other side of the issue were Attorney General Eric H. Holder Jr., Director of National Intelligence Dennis C. Blair and White House counsel Gregory B. Craig, whose colleagues during the campaign recall him expressing enthusiasm for fixing U.S. detainee policy. 
• Defense Secretary Robert M. Gates had said he supported the disclosures because he saw the information's release as inevitable and because the White House was willing to promise that CIA officers would not be prosecuted for any abuse. Joint Chiefs of Staff Chairman Mike Mullen sided with Gates.

04/24/09:  CNN reports that Attorney General Eric Holder was decidedly noncommittal Thursday as he was buffeted on Capitol Hill by alternating demands to release -- or not -- more secret documents related to alleged torture, and to prosecute -- or not -- Bush administration officials who wrote and approved those documents.  Holder was scheduled to appear before a House committee to discuss the Justice Department budget, but lawmakers threw away the script and overwhelmed him with pointed questions about the memos and accountability for the interrogation policies.

04/23/09:  The New York Times reports that even the most exacting truth commission may have a hard time determining for certain whether brutal interrogations conducted by the CIA helped keep the country safe. Obama's new director of national intelligence, wrote in a memorandum to his staff last week that “high value information came from interrogations in which these methods were used,” an assertion left out when the memorandum was edited for public release. By contrast, Obama and most of his top aides have argued that the use of those methods betrayed American values — and anyway, produced unreliable information.

04/23/09:  The Wall Street Journal features an opinion piece which argues that to get a complete picture of the enhanced interrogation program, a fair investigation will also require that the Obama administration release the memos requested by former Vice President Dick Cheney on the successes of this program.  An honest and thorough review of the enhanced interrogation program must also assess the likely damage done to U.S. national security by Mr. Obama's decision to release the memos over the objections of Mr. Panetta and four of his predecessors.

04/23/09:  The London Times features an opinion piece which argues that, "Torture is morally repugnant and illegal, but also frequently useless. It certainly extracts confessions, but the resulting intelligence is usually flawed, and often dangerously inaccurate. Instead of undermining insurgency, routine abuse of captives has precisely the opposite effect."

04/23/09: The New York Times features an opinion piece by a former FBI agent involved in the interrogations who writes that, "There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process."

04/22/09:  The New York Times reports that President Obama's national intelligence director told colleagues in a private memo last week that the harsh interrogation techniques banned by the White House did produce significant information that helped the nation in its struggle with terrorists.  “High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis Blair, the intelligence director, wrote in a memo to his staff last Thursday.

04/22/09:  The Washington Post reports that Blair told the White House that harsh interrogations of suspected al-Qaeda officials produced "valuable" information, but he added that it is impossible to tell whether the same intelligence leads might have been obtained using less controversial methods.  In any case, the damage to the country's image caused by the use of waterboarding and similar techniques exceeded any potential benefit, Director of National Intelligence Dennis C. Blair said.

04/22/09:  The Boston Globe features an opinion piece in which Jeff Jacoby argues that, "What's missing from all this sanctimony and censure is any acknowledgment of the circumstances under which the CIA interrogations took place, let alone the successes with which they have been credited. That may be a good way to score easy political points. It doesn't add much to the public discourse.  Context matters. Actions that are indisputably beyond the pale under normal conditions - waterboarding a prisoner, for example - can take on a very different aspect when conditions are abnormal, as they surely were in the terrifying wake of 9/11."

04/21/09:  The Washington Independent reports that despite President Obama’s declaration that releasing the four Justice Department memos disclosed Friday would end “a dark and painful chapter in our history,” at least one other memorandum on CIA interrogations remains undisclosed: a 2007 opinion from the Justice Department’s Office of Legal Counsel on what a new interpretation of the Geneva Conventions’ Common Article 3 meant for the agency’s “enhanced interrogation program.”

04/21/09:  STRATFOR Global Intelligence features a piece by George Friedman in which he argues that, "Th[e] lack of intelligence led directly to the most extreme fears, which in turn led to extreme measures. Washington simply did not know very much about al Qaeda and its capabilities and intentions in the United States. A lack of knowledge forces people to think of worst-case scenarios. In the absence of intelligence to the contrary after 9/11, the only reasonable assumption was that al Qaeda was planning more — and perhaps worse — attacks."

04/21/09:  CNN reports that President Obama on Tuesday left open the possibility of criminal prosecution for Bush administration officials who drew up the legal basis for interrogation techniques that many view as torture.  Obama said it will be up to Attorney General Eric Holder to decide whether or not to prosecute the former officials.

04/21/09:  The Washington Post features an opinion piece by Marc Thiessen in which he argues that enhanced interrogation methods were successful in uncovering and preventing other Al Qaeda terrorist attacks.  Thiessen further argues that the interrogations of Khalid Sheik Mohammed and Abu Zubaydah were effective and helped intelligence officers learn not only about Al Qaeda's organizational attributes and terrorist plans but also about its philosophies regarding resistance to interrogation and how to manipulate them.

04/21/09:  The London Times reports that Dick Cheney has asked for secret US documents to be released showing that harsh CIA interrogation techniques such as waterboarding produced valuable intelligence.  Cheney said that he had made a formal request to the CIA for the documents be declassified because he knew that the interrogation process - now banned by President Obama - had been very successful, and he wanted the rest of the country to understand.

04/20/09:  The Atlantic features a piece by Marc Ambinder in which he presents those cases and individuals who could still face criminal prosecution or other sanction despite the Obama administration's pledge not to prosecute those who relied in good faith on the legal advice of the Dept. of Justice.

04/20/09:  The Wall Street Journal features an opinion piece by David Rivkin and Lee Casey in which they argue that the interrogation techniques described in these memos are indisputably harsh, but they fall well short of "torture." They were developed and deployed at a time of supreme peril, as a means of preventing future attacks on innocent civilians both in the U.S. and abroad.

04/20/09:  The Los Angeles Times reports that the conclusion in recently released Justice Department memos that CIA interrogation techniques would not cause prolonged mental harm is disputed by some doctors and psychologists, who say that the mental damage incurred from the practices is significant and undeniable.

04/20/09:  The New York Times reports that CIA interrogators used waterboarding, the near-drowning technique that top Obama administration officials have described as illegal torture, 266 times on two key prisoners from Al Qaeda, far more than had been previously reported.

04/19/09: Jurist reports that UN Special Rapporteur for Torture Manfred Nowak stated earlier last week in an interview with Austrian newspaper Der Standard that the Obama administration's decision not to investigate CIA agents who might have tortured terrorist suspects violates US obligations under the UN Convention Against Torture.

04/19/09: Brian Tamanaha argues on Balkinization that the latest round of legal memos released by the Obama administration which outline the legal rationale for certain interrogation techniques are circular in their logic and substantively lacking.

04/19/09: The Washington Post analyzes the legal memos released by the Obama administration last week, noting that "To supporters of the Bush-era practices, the length, precision and detail of the memos show that...legal red lines were carefully considered and that precautions were taken to avoid causing death or what the memos' authors considered illegal pain. To critics, the sterile wording and articulation of seemingly arbitrary safeguards to sanction what many consider torture evoke totalitarianism."

04/19/09: The New York Times editorializes that the memos were not written to provide legal limits on interrogation, but rather to provide legal immunity for those who committed tortuous acts, and that having written one chapter in the litany of Bush administration human rights abuses, the memos' authors should be held accountable by either the Obama administration or Congress for their misdeeds.

04/19/09: Kevin Jon Heller on Opinio Juris highlights evidence from the memos that interrogators did not rely in good faith on the legal guidance contained in the memos: one memo acknowledges that Guantanamo detainee Khalid Sheikh Mohammed was waterboarded 183 times in March 2003.

04/18/09: The Washington Post reports that psychologists provided ideas, advice, and even legal justification for interrogation techniques including waterboarding, extreme sleep deprivation, and use of insects to inspire fear.

04/18/09: Philippe Sands argues in the Guardian that the Obama administration was right not to target CIA interrogators because the real blame lies with the senior lawyers who authored the memos upon which the interrogators reasonably relied.

04/17/09: The New York Times reports that despite the Obama administration's urging that the US turn the page, the release of executive branch memos outlining the legal rationale for use of torture in interrogation is likely to provoke the release of other documents outlining other Bush techniques used during its global war on terror.

04/17/09: The New York Times posts arguments from Bush administration officials Kori Schake and David B. Rivkin, Law Professors David Cole from Georgetown University and Kenneth Anderson from Washington College of Law at American University, and Center for Constitutional Rights President Michael Ratner, each of whom analyzes differently the implications of the memos the Obama administration released earlier this week.

04/17/09: Former Attorney General Michael B. Mukasey and former Director of Central Intelligence Michael V. Hayden argue in the Wall Street Journal that the Obama administration's decision to release the memos is unnecessary as a legal matter and unsound as a matter of policy.

04/17/09: The Financial Times editorializes that Obama administration's decision to release the memos was a sound, nuanced decision that made the best of a difficult, complex, sensitive situation.

04/17/09: The Times of London reports that the released memos have raised concerns that UK intelligence operatives involved in the interrogations might undergo prosecution.

04/17/09: The Atlantic reports that Senator Russ Feingold (D-WI) thinks CIA operatives involved in the interrogations should be prosecuted.

04/17/09: Dahlia Lithwick argues in Slate that the Obama administration's treatment of the memos as something in the past not worth pursuing in the present suggests that the administration does not consider what transpired under the Bush administration to have been a torture program, contrary to what the memos suggest, yet similar in reasoning to what the memos' authors argued.

04/17/09: The Atlantic reports that the Obama administration's grant of immunity from prosecution for acts committed in good faith reliance on the "torture memos" released yesterday does not extend to interrogators or others who participated in or authorized tortuous activities in bad faith or without reasonable reliance on the memos' guidance.

04/17/09: CNN reports that human rights reacted angrily to Attorney General Eric Holder's announcement yesterday that CIA interrogators who relied in good faith on the released memos' guidance would not face government prosecution.

04/17/09: On Opinio Juris, Kevin Jon Heller comments on the released memos and analyzes their substantive implications. Heller argues here that the administration, by granting immunity to interrogators who reasonably relied on the memos in good faith, misunderstands estoppel by entrapment.

04/16/09: The Obama Administration released four Bush-era OLC memos concerning interrogation techniques today. In the accompanying statement, Obama said that their "release was required by the rule of law." He referred to one his his first Executive Orders prohibiting the use of the techniques "because they undermine our moral authority and do not make us safer."  He said he was releasing the memos because the techniques have already been widely reported, the Bush Administration publicly acknowledged portions of the program, and the techniques were ended through Obama's Executive Order.  Obama said that he would not prosecute those who relied on these memos.

• A 18-page memo, dated August 1, 2002, from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.
• A 46-page memo, dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. 
• A 20-page memo, dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.
• A 40-page memo, dated May 30, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.

04/15/09: The Wall Street Journal reports that President Obama is reviewing top officials' arguments for and against releasing details of CIA interrogation tactics and legal authorities for the tactics contained in Department of Justice memos and elsewhere. Among the details in the still-classified memo is approval for a technique in which a prisoner's head could be struck against a wall, as long as the prisoner's head was held and the force of the blow was controlled by the interrogator.

04/15/09: Marc Ambinder predicts in The Atlantic that if President Obama fails to release significant unredacted portions of the memos, the Left will intensify its assault on his evolving approach to torture proceedings, the state secrets doctine, and the Patriot Act.

04/09/09: The LA Times has two op-ed debating whether John Yoo should teach law. Lawrence Rosenthal, argues that Yoo should not be a professor of law. Recently, the Obama administration made public a memo dated October 23, 2001, signed by Yoo and Robert Delahunty. It concluded that "the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks."  The Yoo-Delahunty memo permits the military to engage in unconstrained search and seizure of even U.S. citizens on U.S. soil, without judicial review of even the grossest abuses. Rosenthal writes "the memos reflect a kind of tunnel vision that I would not tolerate in a student's work and certainly not in the work of an attorney for our government." 

04/09/09: John Eastman's oped argues that Yoo provoked strong and thoughtful discourse about the legal positions he took in OLC memos he wrote after the 9/11 attacks, as the opportunity to confront positions with which one disagrees is the hallmark of a first-rate education. Yoo's positions are supported, some well, some at least arguably, including the 4th Amendment memo recently released. Disagreement about closely contested issues hardly supports the exaggerated claims that Yoo and his colleagues shredded the Constitution, or that he should not be teaching law.

04/07/09: Balkinization commentator Jack Balkin argues that Senate Republicans are quietly threatening to derail the appointments of Yale Law School dean Harold Hongju Koh to the Legal Advisor position at the State Department, and Dawn Johnsen to be head of the Office of Legal Counsel at the Department of Justice, because they fear both will release the classified "torture memos" written during the Bush administration.

04/06/09: Slate has an opinion piece by Glenn Greenwald arguing that because the Bush administration torture memos are some of the clearest and most authoritative sources to document the Bush administration's decision to condone torture at Guantanamo, the time to delay their release has past.

04/04/09: Newsweek reports that Attorney General Eric Holder wants to release classified Bush-era interrogation memos. But U.S. intel officials are fiercely lobbying the White House to block him from moving forward. A fierce internal battle within the White House over the disclosure of internal Justice Department interrogation memos is shaping up as a major test of the Obama administration's commitment to opening up government files about Bush-era counterterrorism policy.

03/23/09: Newsweek reports that despite objections from the U.S. intelligence community, the White House is moving to declassify—and publicly release—three internal memos that will lay out, for the first time, details of the "enhanced" interrogation techniques approved by the Bush administration for use against "high value" Qaeda detainees. The memos, written by Justice Department lawyers in May 2005, provide the legal rationale for waterboarding, head slapping and other rough tactics used by the CIA.

03/04/09: The Washington Post reports that Justice Department officials intend to release more secret legal memos that underpinned the Bush administration's approach to national security issues, responding to pressure from Democratic lawmakers and interest groups that have sued for access to the sensitive materials

03/04/09: The ACLU has an index of the Bush-era OLC memos, including entries for still-secret memos that were referenced in the memos released this week.

03/03/09: The Blog of Legal Times has analysis of the nine Bush-era OLC opinions released yesterday. Steven Bradbury, who left as the acting head of the office in January, issued two memorandums disowning a host of controversial legal propositions made by the office. For instance, Bradbury repudiated a 2001 opinion co-authored by John Yoo that addressed the domestic use of military force to combat terrorism. Additionally, Bradbury wrote that several opinions from 2001 and 2002 "relied upon a doubtful interpretation" of FISA. The Washington Independent has additional analysis.

03/02/09: The DOJ released nine OLC memoranda prepared by Bush administration lawyers on national security issues. Links to the nine memos are here:

• Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (01-15-2009)
• Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches (09-25-2001)
• Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States (10-23-2001)
• Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty (11-15-2001)
• Memorandum Regarding the President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002)
• Memorandum Regarding Swift Justice Authorization Act (04-08-2002)
• Memorandum Regarding Determination of Enemy Belligerency and Military Detention (06-08-2002)
• Memorandum Regarding Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (06-27-2002)
• Memorandum Regarding October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (10-06-2008)

02/26/09: Jameel Jaffer argues in the LA Times that the Obama administration should make public the remainder of the Office of Legal Counsel memos generated during the Bush administration. Without them, the public lacks important knowledge about how the Bush administration's policies were developed, who developed them, and what legal arguments were used to support them.

01/13/09: The Office of Legal Council has released a memorandum from US Attorney General Mukasey to the Senate Majority Leader, from November 2008, declaring his view that proposed legislation requiring public disclosure of OLC memos in certain scenarios would be unconstitutional.  The memo is posted here.

01/11/09: EJIL: Talk! discusses three recently released memos by the OLC which reveal the advice the office gave to President Bush on the legality of the use of force against Iraq, both under US constitutional law and under international law. HT to Opinio Juris.

12/01/08: The Washington Post discusses how the incoming Obama administration can rebuild the Department of Justice, which has been embroiled in controversy during the Bush administration. Among the suggestions include relying on a bipartisan group from the Office of Legal Council (OLC) to review and make recommendations about existing memos and urging the DOJ to make OLC memos public whenever possible.

09/18/08: Secrecy News reports that a bill has been introduced in the Senate, called the OLC Reporting Act of 2008. The bill would require the Attorney General to report to Congress when they issued a legal opinion that the Executive branch is not bound by a statute. The bill stems from the Executive branch's opinions on detainee interrogation, warrantless wiretapping, and torture policies.

Thread: Bush-era OLC memos / torture memos