Thursday, January 04, 2007

Justice Dept. Refuses Senator's Requests for Docs on Detainee Treatment

From yesterday's L.A. Times:

"Setting up what could become the first showdown between the Bush administration and the new Democratic Congress, the Justice Department has refused to turn over two secret documents, describing the CIA's detention and interrogation policies for suspected terrorists, to the incoming chairman of the Senate Judiciary Committee."

Senator Leahy "waited until the week that Democrats take control of Congress to release — and denounce — the response" after sending the letter to DOJ during the congressional recess. Predictably, the DOJ responded that:

"Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them," wrote James H. Clinger, acting assistant attorney general for legislative affairs. "We must avoid assisting their effort... Clinger said the department had already briefed members of the Senate and House intelligence panels about aspects of the anti-terrorism programs, fulfilling its obligations under the law."

Also, the FBI released documents regarding detainee treatment yesterday in response to an ACLU Freedom of Information Act Request. You can read the ACLU's response here and view the documents themselves here.

The ACLU describes the documents as including "some new accounts of abuse related to the detainees' religious beliefs:"

- Investigators wrapped a detainee's head in duct tape "because he would not stop quoting the Koran."
- Another agent said an interrogator bragged about making a detainee listen to "satanic black metal music for hours and hours."
- According to the same report, the interrogator later "dressed as a Catholic Priest and baptized the detainee in order to save him."
- In another incident observed by an FBI agent, a Marine captain squatted over the Koran during an interrogation of a Muslim prisoner, which the prisoner found extremely offensive."

Making enemies faster than we can kill them.

UPDATE: Marty Lederman, at Balkinization, writes an excellent analysis of possible DOJ justifications for refusing Leahy's request. He writes:

"The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are."

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