The ACLU sued the Department of Justice five years ago to try to force release of documents related to treatment of detainees in the so-called “War on Terror.” The DOJ, now Barack Obama’s DOJ and not George Bush’s, must file a response memo by Friday regarding three documents authored inside the Bush DOJ’s Office of Legal Counsel.
Given that Obama himself has already directed federal agencies to err on the side of openness in responding to Freedom of Information Act requests, he’s on the hot seat on this one. At the same time, given that his DOJ has already, in court, thrown its support behind the Bush DOJ’s expansive interpretation of state secrets, there’s no guarantee here that the Obama of reality will match up with the Obama of rhetoric.
The ACLU is trying to determine if the OLC back-dated the memos in an attempt to provide ex post facto legal cover for CIA agents engaged in torture or “torture-lite.”
The Bush Administration has used two arguments in rejecting ACLU demands for the documents.
First is executive privilege. Given that, in the American tradition of “presidentialism,” a new Chief Executive is loath to surrender powers accumulated by a predecessor, we don’t know what will happen here. (Ditto for John Conyers re-filing his demands for Karl Rove and others to speak to House Judiciary.)
Second is, in essence, a version of the state secrets doctrine. Given the Obama Administration’s support for the Bush Administration’s expansive interpretation of this, don’t hold your breath here, either, Friday.
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