We've two competing stories for why AG Eric Holder has requested another delay in the court-imposed deadline for releasing three key Bush OLC torture memos. Last week in Newsweek, Michael Isikoff reports that it's coming as internal pressure from Bush holdover John Brennan.
U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official, who asked not to be identified because of political sensitivities....
Brennan succeeded in persuading CIA Director Leon Panetta to become "engaged" in his efforts to block release, according to the senior official. Their joint arguments stalled plans to declassify the memos even though White House counsel Gregory Craig had already signed off on Holder's recommendation that they should be disclosed, according to an official and another government source familiar with the debate. No final decision has been made, and it is likely Obama will have to resolve the matter, according to the sources who spoke to NEWSWEEK.
Today, Scott Horton reports that Senate Republicans are behind the delay, and that they are holding the threat of filibustering the appointments of Dawn Johnsen to the OLC and Harold Koh to State (both staunch torture critics) over Obama.
Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to "go nuclear" over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public.
Both stories are entirely plausible, and in fact Horton got confirmation from a Justice Department source that Brennan "has consistently opposed making public the torture memos—and any other details about the operations of the extraordinary renditions program."
Maybe this is just the new hook for Republicans to obstruct the nominations over--they saw Brennan making the argument and jumped on board. They've trotted out plenty of other excuses, from the insane "controversy" over Koh's "support" for Sharia law, to the incredibly predictable insane accusation that Johnsen equated pregnancy with slavery in a legal argument.
Both Brennan and the Senate Republicans seem to be threatened by any more information coming about what the world already knows: we tortured people. Balkin has some interesting thoughts about why there is so much resistance:
It cannot be diplomatic embarrassment about the names of the countries that cooperated; these can be redacted. It cannot be the revelation of particular techniques; these have been thoroughly vetted in the press in the past several years.
The real resistance, it appears, is to the public disclosure of an official government document approving specific techniques that amount to torture. This degree of specificity and the government's request for approval of specific techniques does not appear in the original torture memos already released to the public. It is one thing to read a memo reading the torture statute ridiculously narrowly; it is another to read a memo stating that the OLC has been asked whether techniques X, Y, and Z violate the criminal law and reaching the conclusion that the law permits them or else the law is unconstitutional. Reading such memos brings us much closer to a specific government order to engage in torture.
Perhaps Senate Republicans and their allies they fear that, if such documents ever came to light, pressure for public investigations-- including a truth commission-- and even the appointment of a non-partisan special prosecutor to investigate possible criminal prosecutions would become inevitable.
The ultimate point is, Republicans are going to try to obstruct Obama's legal picks whether it be over torture or abortion. They're going to have to rely on numbers--and good luck to them on getting Snowe, Collens, and Specter to join a filibuster over either issue.
Republican obstructionism is not a good enough reason for President Obama to reverse himself on one of his primary pledges: transparency. In fact, it's a pretty great political set-up for making the Republicans look even worse--they're really fighting to protect torturers? Bottom line, those memos have to be released. As Balkin argues:
One thing is clear. Astute politicians must have judged that the disclosure of these torture memos may significantly change the stakes of politics. They fear that these memos will have a powerful effect on public opinion.
That, however, is another reason not to give into this form of political blackmail against Koh and Johnsen and release the memos immediately. Once these documents are released, it will be harder to keep out of government people who have condemned torture and illegality for a very long time.
(Also see calchala's recommended diary.)