Noting the need to clarify a number of questions surrounding the legal advice provided by the Office of Legal Counsel under Jay Bybee’s leadership, Senator Patrick Leahy, Chair of the Senate Judiciary Committee sent a letter today to Bybee inviting him to testify before the committee. In particular, the letter points out press accounts that White House Counsel Alberto Gonzales asked Bybee, who was interested in the seat on the Ninth Circuit Court of Appeals which he now holds, if he would first serve as head of OLC. Leahy offers Bybee the opportunity to “come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.”

Further, noting the contrast between a Washington Post story over the weekend suggesting that Bybee has regrets over the memoranda issued while he headed the Office of Legal Counsel and today’s New York Times story quoting Bybee as saying that he ‘believed at the time, and continue to believe today, that the conclusions were legally correct,’ Leahy offers Bybee the opportunity to clarify what he meant in his public discussion of these issues. Leahy concludes: “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House.”

These are excellent questions. The American public deserves to have the answers.

Two August 1, 2002 OLC memos signed by Bybee have been released. One, released in 2004, concludes that to violate U.S. law against torture, conduct must cause pain equivalent to “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The second, released earlier this month, authorizes the use of coercive interrogation techniques on Abu Zubaydah, including extended sleep deprivation and waterboarding.

We just got word from the Senate Judiciary Committee that Republicans are going to get another shot at questioning Judge David Hamilton, President Obama’s first judicial nominee who is being put forward for a seat on the Court of Appeals for the Seventh Circuit.

Senator Leahy is indeed bending over backwards to accommodate Republicans, who, as we’ve reported, threatened to filibuster the President’s judicial nominees before a single name was put forward and who boycotted Hamilton’s first hearing, because they claimed they did not have enough time to prepare, prompting Senator Leahy to ask their questions for them.

As Senator Leahy said in making the announcement of this rare second hearing, “It has been four weeks since Judge Hamilton first appeared before the Committee, and I am disappointed that Committee Republicans have yet to ask a single question of this nominee.” Hopefully, this time the Republicans will show up and ask their own questions. Judge Hamilton is eminently qualified for this position – his nomination should not be further delayed.
 

President Obama’s choice to head the Office of Legal Counsel moved out of the Judiciary Committee today on a not-quite party line vote of 11-7. All the Democrats on the Committee supported her nomination, and all the Republicans opposed it, except for Arlen Specter, who passed.

Today’s vote is important because now the nomination of this extraordinarily qualified woman to head the Office of Legal Counsel will go forward to the floor, where—hopefully—she will get a vote by the full Senate.

But today’s session was also important because of the truth telling by a number of members, including Senators Leahy, Durbin, and Whitehouse, about the central role the Office of Legal Counsel played during the Bush Administration in undermining the rule of law and advancing some of its "most horrendous practices." As Senator Whitehouse said it was the "leading contender for the most rotten place during the Bush Administration.” 

The Senators made the case for how qualified Dawn Johnsen is to head this office—her record of previous service as a Deputy Attorney General; her intellectual honesty and exceptionally good judgment; her extremely constructive role, in response to the Bush Administration excesses, in pulling together nineteen former OLC attorneys to craft a statement of principles to guide the Office of Legal Counsel that has won bipartisan praise. And they told their colleagues on the other side of the aisle that when this nomination comes to the floor, if they want to debate the past role of the Office of Legal Counsel, if they want to debate the role that John Yoo among others played in undermining the rule of law, then bring it on. That’s the kind of debate the American people will understand!

This was a good day for the American people, and for the rule of law.  Let’s hope it continues.