Republicans Blackmailing Obama to Protect Torture Regime

by Brien Jackson

Scott Horton is reporting, at The Daily Beast, that 2 Obama nominees are being held ransom by Senate Republicans in an effort to prevent the Obama administration from releasing Bush administration Office of Legal Counsel memos concerning the legality of torture and other Bush administration policies:

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. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

This is, as far as I know, a fairly unprecedented move. Both Republicans and Democrats have filibustered nominees for the federal bench, and whether you agree with that in theory or not, there seems to at least be some solid rationale for it, in so much as the Judiciary is a seperate branch and appointees serve life terms. But broadly speaking, both parties have traditionally deferred to the right of the President to staff the executive branch with the people he prefers, short of criminality or gross lack of qualification anyway. Some nominees invariably get caught up in some scandal or another, as Congressional opposition seeks the customary scalp, but for the most part, and especially considering the highest profile positions, Congress is traditionally highly deferential regarding executive branch appointments.

There’s a couple of ways to go with this. The first is to note the bizarre logic for this, if Horton’s reporting is accurate. Are Senate Republicans really willing to make John Yoo the hill they die on? Even the Bush administration OLC repudiated Yoo’s memos before they left office. Wouldn’t a logical response for the post-Bush GOP be to try to put Bush behind them as forcefully as possible? And I’d also be remiss if I didn’t note the irony of the party who, for the last 7 years, heartily embraced a broad reading of the unitary executive theory now deigning to encroach on an area that is pretty explicitly the perogative of the President. If the executive branch wants to release executive branch documents, who exactly is Congress to stop them? I rather doubt that Republicans would approve of President Obama threatening to withhold funding for Congress unless Jon Cornyn released all of his emails with his staff, or something similar. And, personally, I don’t even see much of a reason not to publish OLC opinions as a rule, but that’s probably best left for another time.

On the other hand, it’s worth asking why these executive offices are even subject to Congressional confirmation in the first place. It’s one thing to require the Secretary of State to be confirmed by the Senate (although I don’t agree with it), but it just seems bizarre that the State Department’s legal adviser needs to be approved by Congress. Ditto for the President’s economic advisers. The Congress doesn’t really add much to the equation, in my opinion, and it doesn’t really strike me as “co-equal” that the President is required to get his subordinates, down to the advisory level, approved by Congress. So far as I know, Congressional advisers do not require Presidential approval, so maybe it’s time to balance out the equation.

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