Yet One More Example of Bush Pushing For the Answers He Wanted, Thou Shall Not Challenge Ed Whelan’s Hackery

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One of the problems with regular blogging is that some news stories seem like so much of the same – missing important caveats and details, read more like opinion pieces, the facts as related to previously published reports are left out – leaving a snapshot. That snapshot, that headline is exactly what the subjects of the so-called news piece want to sink in among the info saturated public, that in general has a terribly short attention span, for example, U.S. Lawyers Agreed on Legality of Brutal Tactic. OK, then. Lots of people with law degrees said that torture was legal. The poor Bush administration was simply the victim of some bad legal advice. As Glenn Greenwald notes the Bushies went to the Department of Justice, much like they went to the CIA about WMD and al-Queda connections, and pressured DOJ lawyers to come up with legal opinions that fit their agenda. Bush and Company wanted to torture subjects in part to get them to make false confessions about intelligence that was not true and ignore laws that would prevent such abhorrent behavior, What the new Jim Comey torture emails actually reveal

The New York Times was provided 3 extremely important internal Justice Department emails from April, 2005 (.pdf) — all written by then-Deputy Attorney General Jim Comey — which highlight how the Bush administration’s torture techniques became legally authorized by Bush lawyers.  As Marcy Wheeler documents, the leak to the NYT was clearly from someone eager to defend Bush officials by suggesting that Comey’s emails prove that all DOJ lawyers — even those opposed to torture on policy grounds — agreed these techniques were legal…

[   ]…Comey begins by noting that OLC lawyer Patrick Philbin had expressed numerous objections to the Bradbury memo — all of which were being ignored in the rush to give the White House what it wanted:

Comey then noted that he, too, had “grave reservations” about the DOJ legal opinion:

Does that sound to you like there was unanimity in the DOJ about the legality of these methods?

As a result of his objections, Comey went to Attorney General Alberto Gonazles to urge that the memo not be approved, but Gonzales told him that he was under extreme pressure from Dick Cheney, David Addington, Harriet Miers — and even Bush himself — to get these memos issued…

President Obama, not given nearly enough credit by conservative cheerleaders for torture, wants to move on. That simply is not possible. As time passes we’re get more leaks and more documents that become available as time passes and they become available through the Freedom of Information Act. It might be a couple decades, I forget the exact time limits, but eventually many of the conversations that Bush, Cheney etc had in the Oval Office – many of which have been recorded will also become available like the tapes from Kennedy, Johnson and Nixon. History will not be kind to an administration that acted like scheming criminals more then trusted public officials that were sworn to act within the framework of the Constitution.

Conservative “hitman” Ed Whelan has been busy with almost daily hackery at the National Review’s Bench Memos, aimed at derailing Judge Sotomayor’s appointment to the Supreme Court – yes one can always depend on the Right to live down to our worse expectations. publius at Obsidian Wings has simply been doing what bloggers do, calling out Whelan on some opinions that were more twisted then average especially in light of the fact that most liberals and moderates would acknowledge that Whelan is a well qualified lawyer capable of making the kind of rational disagreements that we should be having rather then these -Hannity-Limbaugh-Coulterish style mud slingings. pubius is or was an anonymous blogger, so out of the petty revenge Whelan outs publius – Stay Classy Ed Whelan

And to be clear – the proximate cause was that Whelan got mad that I criticized him in a blog post.  More specifically, he’s mad that Eugene Volokh made him look rather silly – and he’s lashing out at me for pointing that out, and publishing my name.

For background, Whelan and others have been harshly criticizing Sotomayor for her comment that courts are “where policy is made.”  Whelan has repeatedly seized on this comment (in print and on TV), and is demagoguing it (much like he did with selective and inflammatory readings of Koh).

The problem, though, is that it’s not even controversial that courts consider policy, which Whelan knows full well.  Volokh, responding to one of these Whelan posts, wrote an excellent and definitive blog post explaining in great detail why courts do consider policy (something Orin Kerr echoed a while back too).   Volokh’s post embarrassed Whelan because it decimated his argument – and now he’s mad.

Whelan took a beating from both publius and Eugene Volokh, but since Volokh doesn’t write under a pseudonym, Whelan couldn’t take any revenge directed at him – Ed would have been forced to deal in the facts of the argument at hand, something he seems unable to do – which n part explains the hackish nature of his posts at National Review. Supreme Court Justices and “Policy Implications”

1. In some cases, the Supreme Court acts as a common-law-making court, or something very close to it, and there is (and should be) very little controversy about this. Admiralty law is one example. The defenses to federal criminal charges are another. (Federal crimes are legislatively defined, but the defenses are not.) The law of many federal remedies is in some measure another — consider the preliminary injunction standard, which calls for considering the consequences of granting or denying the injunction, or consider the qualified immunity caselaw, which has largely been developed with an eye towards the consequences of providing more or less liability. ( Eugene Volokh entire post is rather lengthy, but worth reading. The post, contrary to Whelan’s assertions takes up much more then the issue of a lame legal profession inside joke that told by Sotomayor).

So Whelan got in some petty revenge against a blogger, but at the end of the day several bloggers have taken Whelan to the woodshed both in terms of the history of the federal courts and on points of legal precedent. Ed cannot reply because without hiding behind the hacery he would have to acknowledge facts of which he is well aware. While its fun to watch a denizen of the Right shoot themselves in the foot, it still doesn’t make up for the harm Ed may have done to publius’s family, colleagues and friends.