Nomination Watch: Obama Mulls as Conservatives Lay Plans

      President Obama began interviewing potential Supreme Court nominees even as conservatives and Republicans were sending strong signals to expect a contentious confirmation fight.
      The conservative Judicial Confirmation Network held a nationwide conference call of supporters on May 18 to release three new Internet ads directed against the three presumed frontrunners for the seat of retiring Justice David H. Souter. Introducing the ads, Wendy Long, the group’s general counsel, described Solicitor General Elena Kagan, Seventh Circuit Judge Diane Wood, and Second Circuit Judge Sonia Sotomayor as “left-wing ideologues.” The ads attack Kagan for “kick[ing] the military off campus, incredibly, during a time of war,” Wood for ruling that “peaceful abortion demonstrators should be punished under the same law that applies to mob bosses,” and Sotomayor for not giving “a fair shake to fire fighters deprived of promotion on account of their race.”
      A day earlier, the New York Times and Washington Post both reported on conservative groups’ strategy memos acknowledging plans to use opposition to Obama’s nominee to rally their base and help unify the beleaguered Republican Party. As the Times reported, most conservative organizations are resigned to the likelihood of Senate confirmation of Obama’s eventual nominee by a sizable majority, but see the fight as an opportunity to develop a strong conservative message. “It’s a massive teaching moment for America,” veteran conservative fundraiser Richard Viguerie told The Times. In the Post, conservative organizers were described as planning to use the familiar issue of abortion and the more recent issue of gay marriage as litmus tests to judge Obama’s nominee.
      Three days later, veteran Republican operative Ed Gillespie, who helped guide two Supreme Court confirmations for President George W. Bush, called in an op-ed in the Post for GOP senators to match Democrats’ tactics in opposing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Instead of simply judging legal qualifications, Gillespie said Republicans should feel free to vote against a nominee who embraces “empathetic activism on the bench.”
      The White House, meanwhile, is preparing for the confirmation battle by moving Stephanie Cutter, who guided the Democrats’ strategy on the Roberts and Alito nominations, from a Treasury Department post into 1600 Pennsylvania Avenue. “Moving Cutter shows how seriously we are taking this pick and its rollout,” an unnamed aide told Politico.
      Obama himself began the interview process with a White House meeting with Wood on Tuesday (May 19). Wood was in Washington for a conference on judicial independence sponsored by retired Supreme Court Justice Sandra Day O’Connor. In reporting the interview, the Times noted that Obama would have time for additional interviews while spending Memorial Day weekend at Camp David. (The Times later confirmed that a second finalist has also been interviewed.)
      The Times also continued profiling other frontrunners for the vacancy, with largely positive portraits of Kagan and Carlos Moreno, the California Supreme Court justice who has figured in some speculation as a dark-horse contender. Meanwhile, Jeffrey Rosen, the New Republic legal affairs editor who drew criticism for an unfavorable piece on Sotomayor, heaped warm praise on Wood for what he called her “moderate liberalism and judicial temperament.”
      On the left, People for the American Way countered the conservatives with an extended critique of what the group called the conservatives’ “dishonest, discredited attacks.”
      Obama is widely expected to announce his selection before the end of the month.

Nomination Watch: Suspense Builds as Obama Mulls List

      Could the White House be planning a surprise nominee for the Supreme Court? That is one question in the air as President Obama prepares to spend the weekend (May 16-17) considering a list of six or possibly more potential candidates to succeed retiring Justice David H. Souter.
      Two news organizations reported largely overlapping lists of six purported “finalists” for the post, both including five women, all previously listed in speculation. But the White House also sought to confound speculators by insisting that some of those under consideration have not been publicly identified.
      “The president does take some heart in knowing that in all of the lists that have been seen and produced, there hasn’t yet been one produced with the totality of names which are being considered,” White House press secretary Robert Gibbs said in the daily press briefing on May 12.
      The lists reported by CNN and National Public Radio the next day both included the three presumed frontrunners for the seat: federal appeals court judges Sonia Sotomayor (2d Circuit, New York) and Diane Wood (7th Circuit, Chicago) and Solicitor General (and former Harvard Law School Dean) Elena Kagan. Also on both lists, two political figures: Jennifer Granholm, governor of Michigan, and Janet Napolitano, secretary of Homeland Security and a former Arizona governor and state attorney general.
      CNN reported that the list of six also includes Carlos Moreno, a justice on the California Supreme Court, who like Sotomayor is of Hispanic descent. NPR identified Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, as the sixth of the finalists. All of these contenders are white, but at least two African Americans have been previously listed as possibilities: Leah Ward Sears, chief justice of the Georgia Supreme Court, and Deval Patrick, governor of Massachusetts.
      Surprise has often been an element of presidential decisions on Supreme Court nominees. President Ronald Reagan stunned Court watchers in June 1986 by simultaneously announcing — with no advance warning — the retirement of Chief Justice Warren E. Burger, his selection of then-Associate Justice William H. Rehnquist to succeed Burger, and his plan to nominate then-Judge Antonin Scalia to take Rehnquist’s seat. Three years later, Souter himself acknowledged surprise when President George H.W. Bush chose him in July 1989, only three days after Justice William J. Brennan Jr.’s retirement.
      More recently, President George W. Bush’s aides may have helped create suspense by spreading disinformation about a successor to retiring Justice Sandra Day O’Connor in July 2005. Throughout the afternoon of July 19, seemingly authoritative sources were reporting that the post was going to federal appeals court judge Edith Clement of New Orleans. At 9 o’clock, however, Bush presented John G. Roberts Jr. as his choice at a White House ceremony. Six weeks later, Bush wasted no time in nominating Roberts instead to be chief justice following Rehnquist’s death from cancer.
      Obama met with Senate leaders to discuss the current vacancy on May 13, but the president mentioned no names, according to one of those who attended, Senate GOP Leader Mitch McConnell of Kentucky. Others in the 40-minute session included Majority Leader Harry Reid, D-Nev.; Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala.
      McConnell and Sessions both told reporters that they urged the Democrats to allow a 60-day period after Obama’s announcement before launching hearings. Leahy’s response was noncommittal: “We'll work out a decent schedule. Let's get the nominee first.”
      Without naming Sotomayor, many Hispanic groups and leaders were urging Obama to take the chance to name the first Hispanic to the high court. (Justice Benjamin Cardozo’s Portuguese ancestry had not been taken into account until recently.) But Sotomayor continued to be drawing critical attention. In the mix, as reported in The New York Times and elsewhere: videotaped remarks saying that federal courts of appeals (in contrast to district courts) are “where policy is made” and a 2001 speech with the comment that a judge’s sex and ethnicity “may and will make a difference in our judging.”
      The Times also published a more favorable profile of Sotomayor, along with a Web posting of selected opinions. Earlier, the Times had similarly profiled Judge Wood and posted selected opinions on the Web.
      Kagan, the third presumed frontrunner, was profiled in the Los Angeles Times. The headline said she had “admirers left and right” for what the story described as her success in “bridging the ideological divide” as dean of Harvard Law School.
      A nomination is widely expected by the end of the month. On the PBS “NewsHour,” senior adviser David Axelrod said he expected Obama to announce his choice “sooner rather than later.”

Nomination Watch: Let the Vetting Begin!

      One week after news of Justice David Souter’s retirement, the White House is said to have a short list of six, the vetting — official and unofficial — is under way, and conservatives and Republican senators are arming for an admittedly uphill battle.
      NBC’s Pete Williams and NPR’s Nina Totenberg are credited with breaking the story on the evening of April 30. Judiciary Committee Chairman Patrick Leahy, D-Vt., later confirmed to NPR he heard it from Souter in March; the White House is said to have gotten word earlier in the week, prompting speculation the leak came from 1600 Pennsylvania.
      Some observers suggested the leak was bad for the White House: more pressure from outside. More plausible: the White House is happy to have the news out to start floating names, gauge reaction, and be publicly seen to be consulting widely.
      Obama made the announcement official May 1 by interrupting the regular White House press briefing right after talking with Souter on the phone. Obama said “empathy” is “an essential ingredient” for a nominee. Other criteria: “dedicated to the rule of law,” “honors our constitutional traditions,” respects the integrity of the judicial process and the appropriate limits of the judicial role.” Conspicuously missing: judicial restraint, strict construction.
      Republicans wasted no time in attacking the president’s criteria. On “Meet the Press,” ex-Judiciary Committee Chairman Orrin Hatch, R-Utah, said empathy was a “code word” for liberal judicial activist. By midweek, Alabama’s staunchly conservative Jeff Sessions had been picked to be ranking member for the hearing. Sessions — recalling the Judiciary Committee’s rejection of his nomination for the federal bench in 1986 — told Politico that the committee needs to base any criticisms of Obama’s nominee “on a fair and honest statement of the facts.”
      Conservatives were also quick to start roughing up some of the presumed front-runners, including Judges Sonia Sotomayor (2d Circuit) and Diane Wood (7th Circuit) and Solicitor General (and ex-Harvard Law School dean) Elena Kagan. Judicial Confirmation Network’s Wendy Long labeled all three as “liberal judicial activists.” The hit on Sotomayor: ruling against the white firefighters in the New Haven case before the Supreme Court; being a “bully” on the bench. The hit on Wood: allowing use of RICO against anti-abortion protesters (twice overruled by Supreme Court). The hit on Kagan: seeking to bar military recruiters from campus because of “don’t ask, don’t tell” (rejected by Supreme Court). At Bench Memo, Ed Whelan seconded the critique on Wood, in two parts (May 4 & 5).
      Sotomayor got a second and more significant roughing-up from the New Republic’s Jeffrey Rosen, who — in the first of a promised series on potential nominees — sized her up as overbearing and under-smart. Rosen’s piece prompted more favorable comments from Sotomayor admirers and a critical dissection from Talking Points Memo. Rosen responded by sticking to most of his critique, denying any use of deputy SG and Rosen brother-in-law Neal Katyal as a source, but concluding with the description of Sotomayor as “an able candidate.”
      For their part, liberal groups such as People for the American Way and the Alliance for Justice were naming no names but urging Obama to name a justice who “will defend the rights of individual Americans against powerful government and business interests” (People For) with “a commitment to equal justice for all, not just a few” (Alliance for Justice).
      One week into the process, ABC’s Jan Crawford Greenburg reported on her “Legalities” blog that the White House had sent questionnaires to a short list of six candidates, including Sotomayor, Wood, and Kagan. The other three names: unleaked for now. Greenburg says chief of staff Rahm Emmanuel likes the politics of picking Hispanic Sotomayor; unnamed “legal officials” are said to think Wood or Kagan would bring more “intellectual prowess” to the court’s liberal wing.
      With virtually all speculation focused on female candidates, Slate’s Dahlia Lithwick and Hanna Rosin openly labeled Stanford law professors Kathleen Sullivan and Pamela Karlan as openly out lesbians and speculated about the sexual orientation of other unmarried women being mentioned: Kagan and Homeland Security Secretary Janet Napolitano. Sessions told Politico’s Jonathan Martin he would not be averse to a gay nominee.
      As for timing, Souter said he will retire when the court “rises for the summer recess” (at the end of June) instead of waiting for a successor to be confirmed. Obama wants the nominee in place by the traditional First Monday in October. Even if vetting takes a few weeks, as seems likely, the Judiciary Committee has ample time to meet Obama’s schedule. Watch here for more.

David Souter: A Principled Justice

      David Souter will not be remembered as a great or near great justice. He will leave the Supreme Court at the end of his nineteenth term with relatively few landmark majority opinions bearing his name. His dissenting opinions tend to be long in legal prose and footnotes and short in soaring rhetoric or memorable quotes. And many conservative Republicans will of course remember him as a traitor to their cause and to the president who appointed him, George H.W. Bush.
      Souter deserves better. In an era of increasing ideological polarization on the court, he stands out as a judge’s judge: judicious in temperament, rigorous in legal reasoning, faithful to constitutional tradition, and stalwart in defense of the court as a legal instead of a political institution.
      Nothing exemplifies Souter’s belief in the court’s role better than the decision that many conservatives count as an historic betrayal: his critical vote along with Justices Sandra Day O’Connor and Anthony M. Kennedy in 1992 to reaffirm the landmark abortion rights ruling, Roe v. Wade. Souter’s contribution to the jointly authored plurality opinion stressed the danger that a reversal in the face of intense political opposition would cause what he called “profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law.”
      From various accounts — including that of CNN senior editor Jeffrey Toobin in his book The Nine — Souter believed that the court inflicted that kind of damage on itself with its 2000 decision in Bush v. Gore. According to Toobin, Souter viewed the decision to cut off the Florida vote recount and hand the presidency to George W. Bush as a blatantly partisan act by the five conservative, Republican-appointed justices in the majority.
Toobin wrote that Souter considered resigning — a report disputed by Souter’s original sponsor, New Hampshire’s former Republican senator Warren Rudman. Souter himself has never publicly addressed the report. Indeed, Souter is famously media-averse. He dislikes having his picture taken and vowed that video cameras would be allowed in the Supreme Court’s courtroom only over his dead body.
      Indeed, Souter has been very much the anti-modern justice: using a fountain pen instead of word processor to write his opinions, carrying his apple and yogurt lunch to the office in a plastic bag, and preferring his remote New Hampshire cabin to the social and political life of the nation’s capital.
      Fittingly, Souter’s most distinctive jurisprudential contribution is in fact rooted in history: his strict view of the separation of church and state, whether speaking for a majority or in dissent. In his first important vote on the issue, Souter cast a critical vote (along with Kennedy) to bar even “nondenominational” prayer at high school graduation ceremonies. In his concurrence, Souter carefully reviewed the history of the Establishment Clause to conclude that the Framers intended to bar government support not merely for one particular denomination over another but for religion in general. He then added that reviewing supposedly nondenominational prayers would thrust the courts into “comparative theology” — a task beyond the competence of the federal judiciary.
      A decade later, Souter spoke for the majority in barring religiously-motivated displays of the Ten Commandments in government buildings. In many other cases, however, Souter found himself at odds with the Rehnquist Court’s willingness to permit government aid to religion. And two years ago, he led four dissenters from the Roberts Court’s decision to block taxpayer suits using the Establishment Clause to challenge federal expenditures as improper aid to religious programs or institutions.
      Souter also relied on history to dissent from a second major departure by the Rehnquist Court: the use of state sovereignty principles to limit private suits against state governments for violating federal laws. Dissenting in the 1996 decision that launched the new jurisprudence, Souter argued that the Rehnquist-led majority was misreading the Framers and distorting the court’s own precedents.
      The 1992 abortion decision prompted speculation that O’Connor, Kennedy, and Souter would form a lasting triumvirate in the court’s ideological center. That did not come to pass. Souter moved to the left, while O’Connor and Kennedy reverted to their accustomed positions at the centermost point of a predominantly conservative bench.
      In the succeeding 17 terms, Souter has been a reliable member of a liberal bloc more often than not in dissent in the court’s most important decisions. On the bench, he has used carefully structured questioning to challenge the conservative bloc’s apparent inclinations — for example, in colloquies this week defending the continuing validity of the Voting Rights Act’s key section against the open skepticism from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.
      Souter has not voted in lockstep, however. He departed from the liberal bloc in writing the 5-4 decision permitting police to make a custodial arrest for a minor traffic arrest and the 5-3 decision striking down the punitive damage award in the Exxon Valdez oil spill.
      The Supreme Court’s legitimacy, Souter wrote in the abortion decision, “depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.” Likewise for a justice’s legitimacy. On that standard, Souter has acquitted himself well: a justice as principled as he was unprepossessing, on the bench or off.

Legal Ethics: Torture Memos, Tortured Logic

      The lawyer as litigator owes a client zealous advocacy in the courtroom. But the lawyer as counselor owes the client more: sound, independent judgment about proposed conduct, with frank and fully informed warnings about any doubts, legal or otherwise.
      These elementary teachings in any legal ethics course can readily be applied to the controversy over the “enhanced interrogation techniques” used by CIA agents in questioning the so-called high-value al Qaeda detainees captured after 9/11. A lawyer defending any of the agents in court would have to pull out all the stops to get the agents off. But the lawyers in the Justice Department’s Office of Legal Counsel (OLC) called on to advise the CIA about the legality of the proposed techniques needed to be more skeptical — all the more because they were representing not the agents, but the United States government itself.
     The OLC’s “torture memos” written in 2002 and 2005 and now released by President Obama show that the Bush administration lawyers failed in this basic, ethical obligation. On a quick read, the memos are chilling in the carefully calibrated approval of the techniques: confinement in cramped box, OK, if limited to two hours; sleep deprivation, OK, up to 72 hours or maybe longer; “walling,” OK, up to 30 times; waterboarding, OK, for 20 minutes at a time.
      The memos are even more disturbing in the patent legal errors that emerge from a closer reading. In one mistake already known, the lawyers erred in advising that the Geneva Conventions do not apply to the al Qaeda captives. As the Supreme Court ruled in 2006, the treaties’ so-called Common Article 3 applies to all wartime captives, even those like the al Qaeda operatives who do not abide by the internationally recognized laws of war.
      The lawyers were also on shaky grounds in advising that CIA interrogators would be protected from laws against torture as long as they did not specifically intend to inflict severe bodily harm. That argument would be no better than a dubious defense in the courtroom — and, for that reason, bad advice beforehand.
      Since the release of the memos on April 17, legal commentators have pointed out many other mistakes. As widely observed, the memos approved waterboarding without noting that the United States has itself prosecuted persons who inflicted that technique on U.S. service personnel. That omission exemplifies the broader failure of relying solely on the CIA for information. As noted by Brian Tamahana, a professor at St. John’s University School of Law in New York City, on the Balkinization blog, the interrogation techniques are deemed not to inflict severe injury on the circular ground that the CIA says they won’t.
      Even if those assurances were taken at face value, the OLC lawyers sanction each of the proposed techniques with no consideration of their cumulative effect. And they approve the techniques in part because U.S. service personnel undergo them in training without recognizing that the training is designed to prepare U.S. service personnel to resist torture.
      The lawyers also engaged in specious reasoning to conclude that the proposed techniques satisfy a “shock the conscience” test. That test, the lawyers reasoned, prohibits only “arbitrary” conduct that has no “reasonable justification” in furtherance of a “legitimate” government objective. The interrogation of the al Qaeda captives meets that test, the lawyers continued, because it was aimed at preventing a “grave threat” of supposedly imminent attack.
      On that line of reasoning, virtually any interrogation technique — genital electric shocks, for example — would seemingly pass muster too. And in approving the imminent threat rationale, the lawyers raise no concern that the justification must be continually re-examined — or else it amounts to a blank check with no expiration date.
      In one final omission, the memos never ask about the consequences of possible disclosure — as a good lawyer would have warned was all but inevitable. Indeed, over the past few years, the techniques have leaked out, at great cost to the government’s standing at home and abroad.
      Obama repudiated the memos on his second day in office. The lawyers who wrote or signed them — Steven Bradbury, Jay Bybee, and John Yoo — have moved on: Bybee to a federal judgeship, Yoo back to academia, and Bradbury to the private sector job market. Despite calls for accountability from the political left, they are unlikely to face criminal prosecutions. Nor does impeachment for Bybee seem likely. But the investigation still under way by the Justice Department’s Office of Professional Responsibility could recommend some ethical sanction.
      Of the three, only Yoo continues to publicly defend the memos. Bradbury and Bybee are largely out of sight. But Bybee is reported to have evinced some doubts in a gathering of his former law clerks to mark his fifth year on the Ninth U.S. Circuit Court of Appeals. As reported in The Recorder, a San Francisco-based legal newspaper, a former clerk quoted Bybee as saying he was proud of the memos his clerks had been writing for him — and then added: "I wish I could say that of the prior job I had."

Supreme Court: The Conservative Vision in Roberts' Rulings

      When Kenneth Starr spoke to Georgetown law school’s Federalist Society in February, he repeated a standard conservative critique of the Supreme Court under Chief Justice Earl Warren. The Warren Court, Starr said, was “animated by a vision of a progressive society and of the Court’s using its power to further that progress.”
      As evidence, Starr cited a second-hand quote attributed to Justice Tom Clark, who played the pivotal role in the decision in Mapp v. Ohio (1960) that launched the Warren Court’s criminal procedure revolution. It was Clark, a former U.S. attorney general, who persuaded four other justices to turn a state obscenity case into a decision requiring states to follow the exclusionary rule and bar the use of any evidence illegally seized by police.
      Years later, Starr recounted, Clark was quoted as saying: “We really knew that we had to do something to clean up the nation’s police departments.” Now, decades later, the nation’s police departments have in fact been cleaned up. And no less an authority than the late Chief Justice William H. Rehnquist described the capstone of the Warren Court’s criminal procedure rulings — the police interrogation guidelines established in Miranda v. Arizona (1966) — as “part of our national culture.”
      Starr, the former judge-solicitor general-Whitewater prosecutor now turned lawyer and law professor, described the current Court, under Chief Justice John G. Roberts Jr., as “a very different kind of court.” Without elaborating, Starr seemed to be suggesting that — unlike Warren’s — Roberts’ Court does not bring an overarching "vision" to its judicial decision making. Roberts himself gave the Senate Judiciary Committee a preconfirmation assurance that he had no agenda and wanted only to be an “umpire” while others determined the rules of the game.
      Even at the time, Roberts’ portrayal of judicial decision-making as ideologically neutral could be recognized as claptrap. Now, four terms later, it is clear that Roberts, who came of age in the Reagan administration and to the bench under Bush 43, brings to the bench an overarching, conservative vision of legal policy. And with four votes from the other conservative justices, Roberts has been able to put some of that vision into effect — in some cases, legal precedent to the contrary notwithstanding.
      The most controversial examples of Roberts’ vision came in 2007 as he ended his second term — and the first full term with his fellow Bush appointee, Samuel A. Alito Jr. Replacing Justice Sandra Day O’Connor, Alito created a more reliable conservative majority that flexed its muscles that year by upholding the federal law banning so-called partial birth abortions, limiting school districts’ racial diversity policies and gutting the campaign finance law against corporate-funded, campaign-time “issue advertising.
      The conservatives reached each of those decisions by sliding over or around the Court’s prior rulings. The Court that year also explicitly overruled a 90-year-old antitrust precedent. And it dubiously extended a prior ruling to limit taxpayer suits against use of federal funds to support overtly religious programs.
      The Court has continued to lay waste to precedent. In 2008, the conservatives recognized an individual right to possess firearms under the Second Amendment in the teeth of a 70-year-old precedent to the contrary. Just this month, the Court on April 1 effectively overturned a 35-year-old precedent in order to enforce a collective bargaining agreement requiring workers to take discrimination complaints to arbitration instead of into federal court. Earlier this year, the Court used a footnote to scrap a federal appeals court antitrust ruling written in 1945 by the late Judge Learned Hand that had passed into the law books as settled law.
      Under Roberts, the conservatives also appear to be on a stealth campaign of sorts to gut, if not abolish, the exclusionary rule. The first sign came in 2006 with the 5-4 decision in Hudson v. Michigan permitting the use of evidence found in the suspect’s home even though police had not complied with the “knock and announce” rule before entering. For the majority, Justice Antonin Scalia openly questioned the need for the exclusionary rule in an era of improved police professionalism. In January, Roberts similarly questioned the rationale for the exclusionary rule in another 5-4 decision, Herring v. United States, which allowed the use of evidence except in instances of reckless or systemic police misconduct.
      As in other areas, Justice Anthony M. Kennedy is a sometimes wayward conservative. He wrote a concurring opinion in Hudson to stress that the exclusionary rule remains alive. Earlier this month, he cast a decisive vote with the liberal bloc in Corley v. United States to preserve the Court’s 66-year-old ruling to bar confessions in federal court unless a suspect is taken before a magistrate within six hours of arrest. For the dissenters, Alito said the exclusionary rule served no purpose in such cases.
      These and other decisions reveal the vision that animates the Roberts Court whether or not Kennedy is on board. The agenda includes less protection for women’s reproductive rights, less leeway for schools to promote racial diversity, less room for legislators to regulate campaign spending, less access to courts for workers and consumers, and lessened constraints on the police to safeguard Fourth Amendment rights. It is an ambitious agenda. At age 54, Roberts has ample time to try to put the pieces into effect.

Torture Tales: In Two Countries, Coming Back to Haunt

      When Binyam Mohamed was returned to Britain in February after nearly five years in the Guantanamo detention camp, his allegations that a British intelligence agent had colluded in his torture overseas rocked the British government. Now, a month later, Attorney General Patricia Schotland has formally directed Scotland Yard to investigate the allegations. Not satisfied, a spokesman for the opposition Liberal Democrats is demanding an independent judicial inquiry — in his words — “to ensure that trust in government and international respect for Britain is restored.”
      Contrast the events in Britain with the muted reaction in the United States in the past two weeks to the most compelling evidence to date that the Central Intelligence Agency systematically tortured high-level al Qaeda captives while held in secret prisons overseas. The evidence comes from a two-year old report by the International Committee for the Red Cross (ICRC), which interviewed the 14 prisoners after they were transferred to Guantanamo in September 2006. The report, leaked to University of California journalism professor Mark Danner, explicitly concluded that the interrogation techniques “constituted torture” and “cruel, inhuman or degrading treatment” — both violations of the Geneva Conventions governing treatment of wartime captives.
      Granted, the allegations of torture are hardly new. Human rights groups, lawyers for prisoners, and journalists have been documenting the abusive techniques used against suspected terrorists by military and CIA interrogators almost since the opening of the Guantanamo prison camp in January 2002. The Washington Post’s Dana Priest was awarded the Pulitzer Prize for her stories in 2005 confirming the existence of the CIA’s secret prisons and casting doubt on the U.S. government’s official denials of torture.
      Still, the ICRC report comes, in Danner’s words, with exceptional “authenticity and credibility.” As to its credibility, the ICRC is officially charged under international law with monitoring compliance with the Geneva Conventions. It safeguards its neutrality by keeping its reports confidential, sharing them only with the governments involved. Indeed, the ICRC responded to Danner’s accounts by expressing regret about the disclosures.
      As to the authenticity of the report, Danner notes that ICRC representatives obtained detailed and parallel accounts of the interrogations when they interviewed the 14 prisoners separately in December 2006. According to Danner, the ICRC report specifically writes off the possibility that the prisoners fabricated the accounts since they had been isolated from each other.
      Given that background, news of the ICRC report might have been expected to produce a surge of outrage, protest, and controversy. Instead, Danner’s articles — a full account in the April 9 issue of The New York Review of Books and a condensed op-ed on March 15 in the New York Times — seem to have turned into hardly more than a two-day story. A handful of newspapers published editorials calling for an independent investigation. The American Civil Liberties Union and other human rights groups did the same. But one looks in vain for any palpable reaction from the White House, the Justice Department, or Congress.
      In the first press briefing after the story broke, White House press secretary Robert Gibbs skirted the only question about the report by noting that President Obama had already changed the rules regarding detainees. Two days later, Attorney General Eric Holder told reporters he was “mindful” of the stories, but evinced little interest, according to the account by Congressional Quarterly’s Keith Perine. Specifically asked whether an investigation was under way, Holder replied, “I wouldn’t say that.”
      For his part, CIA Director Leon Panetta is on record opposing any criminal prosecutions of the CIA agents responsible for treatment that — according to the ICRC report — entailed beatings, denial of solid food, sleep deprivation, exposure to extreme temperatures, and forced nudity. “I would not support, obviously, an investigation or prosecution of those individuals,” Panetta told the Senate Intelligence Committee on February 26. While pledging to cooperate with the committee’s investigation, Panetta said he believed the agents “did their job . . .pursuant to the guidance that was provided them, whether you agreed or disagreed with it.”
      In Britain, Binyam Mohamed is taking a similar view of the MI5 agent who, according to his account, fed questions and information to Pakistani officials during his captivity in 2002 and who, he surmises, must have known he was being tortured. “I'm very pleased that an inquiry is taking place,” Mohamed said in a statement issued by his lawyers on March 26. But, Mohamed added, “I feel very strongly that we shouldn't scapegoat the little people or blame Witness B [the unnamed agent]-- he was only following orders.”
      Danner’s op-ed in the Sunday Times hit breakfast tables just as former Vice President Dick Cheney was telling CNN’s John King on “State of the Union” that the Obama administration was making the United States less safe by abandoning the Bush administration’s anti-terror policies. As Danner points out, however, the evidence of torture creates an apparent dilemma for keeping the al Qaeda 14 in captivity. The torture will taint and possibly jeopardize any prosecutions, but — as Danner concedes — many of them likely have “blood on their hands.” The Obama administration, Danner writes, is “haunted” by what its predecessor did. So, he might have added, are we all.