I am thrilled to give everyone a heads up that ACLU attorney Jameel Jaffer will be here tomorrow at 3:00 pm ET/noon PT.
Jameel will discuss the recently released OLC memos and other legal issues surrounding them, detainee treatment, civil liberties and constitutional concerns and all points in between.
The ACLU has put together a handy chart of various points on the most recently released OLC memoranda. You can view the PDF in full here. It’s a concise and incredibly helpful summary.
Jameel has been working on a lot of these issues for ACLU for the last few years, as he is the Director of the National Security Project for ACLU and was lead counsel in, among others, Doe v. Ashcroft and also helped to challenge FISA abuses.
His work has included challenges to the Patriot Act, to detainee questions at Bagram, Gitmo and beyond. Jameel testified last year before the House Judiciary Subcommittee on Civil Rights regarding National Security Letter questions — you can read his opening statement here — and he’s been integrally involved in ACLU’s work on a host of national security and civil liberties intersection questions and challenges.
I know a lot of you have had questions about various issues surrounding these memos, legal challenges and a whole host of open-ended questions about remaining memoranda and whether legal follow-up will be forthcoming. As Jack Balkin wrote last week:
…This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.
These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.
The January 15, 2009 memo offers various reasons why these conclusions are incorrect and why they fail to take into account an abundance of legal materials — including the text of the Constitution itself, which gives Congress the powers to regulate captures. All this might seem to suggest that the previous OLC memos were badly thought out and badly reasoned. Interestingly, however, the January 15, 2009 memo drops a footnote saying that neither this memo nor the October 6, 2008 memo "is intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."
To say that CYA excuses footnote reasoning is shoddy is the understatement of the century in my book. But there we are.
I’m hoping we have a lively discussion about a lot of this — and what ought to come in the weeks and months ahead. Hope you can join us at noon PT/3:00 pm ET Monday for an in-depth chat on OLC memo releases, civil liberties and the restoration of the rule of law — and what we can all do to help move things forward.