Ted Olson and Abu Ghraib

Many others have remarked on Al Gore's recent speech denouncing President Bush. It's a great speech, maybe a landmark, because it crystallizes the opposition to Bush and the need to end this "long national nightmare."

In rereading it, it seemed to me that the really core issue that Gore zeroes in on is the torture at Abu Ghraib and how it represents the utter moral collapse of American stature abroad wrought by this administration. I especially noted these remarks:

He [Bush] promised to "restore honor and integrity to the White House." Instead, he has brought deep dishonor to our country and built a durable reputation as the most dishonest president since Richard Nixon.

Honor? He decided not to honor the Geneva Convention. Just as he would not honor the United Nations, international treaties, the opinions of our allies, the role of Congress and the courts, or what Jefferson described as "a decent respect for the opinion of mankind."

… The soldiers who are accused of committing these atrocities are, of course, responsible for their own actions and if found guilty, must be severely and appropriately punished. But they are not the ones primarily responsible for the disgrace that has been brought upon the United States of America.

Private Lynndie England did not make the decision that the United States would not observe the Geneva Convention. Specialist Charles Graner was not the one who approved a policy of establishing an American Gulag of dark rooms with naked prisoners to be "stressed" and even -- we must use the word -- tortured -- to force them to say things that legal procedures might not induce them to say.

These policies were designed and insisted upon by the Bush White House. Indeed, the president's own legal counsel advised him specifically on the subject.

Many others have zeroed in on this legal advice given to the president as being the real nexus of the problem, the turning point at which the administration descended into the abyss. Most notable has been Eric Muller at Is That Legal?, who has called for an investigation into how the Department of Justice's legal team came to give Bush this advice, and the possibility that Deputy Solicitor General Paul Clement may have misled the Supreme Court when arguing the matter earlier this year. Salon picked up on this point as well and explored it thoroughly, concluding:

By failing to inform the Supreme Court about the abuses at Abu Ghraib and the interrogation policies the administration has adopted, the Justice Department -- inadvertently or intentionally -- prevented the justices from possessing information highly relevant to the question of just how much they should trust the administration.

In the words of the Bush administration, none of that really matters. As Clement told the Supreme Court on April 28, "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority."

When the Supreme Court begins handing down decisions this summer, the executive will learn if the judicial branch agrees.

Muller also picked up on a memorandum that linked the advice to the DOJ's Office of Legal Counsel.

However, as Mart Lederman pointed out in Muller's comments:

I think the problem lies less with Clement's answers to the Court, and more with OLC's (and DOJ's) legal conclusions and (perhaps most importantly) with the fact that the Executive adopted whose conclusions (presumably) against the strong objections of career attorneys in State and elsewhere, without consulting Congress, and without a public debate concerning the meaning of the conventions.

However, I think that while the initial paper trail points to the OLC, there has to be at least one significant suspect as the actual source of this legal stratagem, namely, Solicitor General Ted Olson -- Clement's boss, and the architect of nearly the entirety of the Bush administration's legal strategy in the war on terrorism.

Recall, if you will, that the New York Times reported some time back that Olson had been selected to head up a special team of lawyers whose task was to "oversee all court challenges to the government's policy of detaining terrorism suspects indefinitely on an American military base in Cuba, administration officials said today." But -- following the recent Times tradition of burying its lead in the final two paragraphs -- the story also ended with this nugget:

The Bush administration announced last week that it decided that the Geneva Convention applied to Taliban prisoners held in Cuba but not to detainees belonging to Al Qaeda. It said that although the United States did not recognize the Taliban as the legitimate government of Afghanistan, Afghanistan was still a party to the convention. Al Qaeda, it said, is an international terrorist group, not a party to the treaty and therefore undeserving of inclusion.

The announcement means that the Taliban prisoners will have legal rights that will be denied to the Qaeda members. Both groups have been denied prisoner-of-war status, which allows the United States to try them before military tribunals.

Of course, Digby has already pointed out (citing a Newsweek piece) that Olson was almost certainly involved in the high-level discussions about how to deal with suspected terrorists:

The president's men were divided. For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men [the Lakawanna Six] should be locked up indefinitely as "enemy combatants," and thrown into a military brig with no right to trial or even to see a lawyer... "They are the enemy, and they're right here in the country," Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts...Cheney and Rumsfeld argued that in time of war there are few limits on what a president can do to protect the country. "There have been some very intense disagreements," says a senior law-enforcement official. "It has been a hard-fought war."

In fact, Olson has employed this argument since 9/11. He contended in a Washington Post piece that the president's wartime powers were virtually limitless when it came to deciding who was an enemy combatant:

In a recent legal brief, Olson argued that the detention of people such as Hamdi or Padilla as enemy combatants is "critical to gathering intelligence in connection with the overall war effort."

"There won't be 10 rules that trigger this or 10 rules that end this," Olson said in the interview. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."

Olson also argued that this power lay solely with the executive branch, and was not the purview of the courts:

…"At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision," Olson said. "Who will finally decide that? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?"

It's probably worth remembering that Olson also has an established record of hostility to the institutions of international law as well. This was clear in an interview with the far-right Webzine NewsMax shortly after 9/11, when he was flogging the last book of his late Clinton-hating wife, Barbara, who was one of the victims of the terrorists:

In an exclusive interview Monday with NewsMax.com, Ted Olson said, "She felt that when American citizens signed on to a court that didn’t embrace American constitutional values, [there was a great] risk to American citizens where everything that we have fought for and stood for over 200 years [would no longer apply].

"They [should] have a court and they [should] have a list of rights and privileges that people have when they’re accused of crimes."

But that’s not the way the ICC works, says Mrs. Olson's book. As Olson told NewsMax, "They will not be controlled by judges bound by the American constitutional system. It won’t be an independent judiciary, bound by the sort of standards that apply in this country."

Nonetheless, Clinton, knowing full well of the ICC's flaws, went ahead and signed it anyway, Mrs. Olson points out.

"So our military people or intelligence people fighting a war against terrorists … might someday find themselves in front of an international criminal court not run according to U.S. constitutional standards," Olson observed. "She was very worried about that, and many people are worried about it. But I think Barbara is one of the few that have spoken about it."

… So here is an international court made up of strangers from foreign lands who have no concept of constitutional protections. They are able to reach out and try Americans for any number of charges, no matter how trumped up they may be. In a word, they can be railroaded. We ask out uniformed military people to protect us. But this treaty, if it is ever ratified, says we cannot offer them the very constitutional protections that they are fighting to defend.

It's more than likely that this hostility played a role in whatever advice Olson gave the president regarding adherence to the Geneva Conventions as well.

Olson, of course, was also more than willing to play the Manichean with-us-or-against-us card in his legal arguments, with open imputations that opposition to this power grab amounted to treasonous aid and comfort to the enemy:

Citing precedents from World War II, the Bush administration warned the Supreme Court this week that granting Guantanamo Bay detainees any access to courts would undermine the war on terrorism and aid enemy forces.

Such a ruling "not only would be very damaging to the military's ability to win the war," but would "no doubt be highly comforting to the enemies of the United States," Solicitor General Theodore Olson wrote in a final brief before the court hears a historic Guantanamo case next month.

Longtime readers of my work will recall that I profiled Ted Olson for Salon back when he was still a nominee, emphasizing his career in the OLC for the Reagan administration, when he was the subject of an independent counsel's investigation for perjury. You may also recall my assessment of the quality and integrity of Olson's advice:

Ultimately, Olson's complete record reveals a troubling portrait of a counselor willing to risk everything -- including the credibility of his president, and his political colleagues' careers -- in pursuit of a highly charged partisan agenda that seems more calculated to bolster his own reputation than the cause of the office he serves, and a lawyer who makes ironclad assertions that later turn out to be false and misleading. It is a record that raises serious questions about his judgment and competence -- as well as demonstrating the capacity for evasion and dissembling now being questioned in the Senate.

And I concluded:

Olson's actual record in that period raises doubts about even this answer. His single-minded effort to assert executive privilege actually overlooked what the law permitted, and it wound up costing President Reagan dearly. One is only left to wonder what dubious legal tangles he has in store for President Bush's agenda.

Unfortunately, that concern has come home to roost.