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Neal Katyal on the secret torture memos

You may not know who Neal Katyal is, but any lawyer worth his or her salt should. A Yale Law graduate who once clerked for Supreme Court Justice Stephen Breyer, he is a professor at Georgetown Law, and last year Lawyers USA declared him Lawyer of the Year and he got a runner up nod for the same award from the National Law Journal.

Why the awards? Probably because he was the lead counsel in the Supreme Court Hamdan vs. Rumsfeld case, in which the court decided against the Bush Administration and declared that the military commissions at Guantanamo violated the Uniform Code of Military Justice and those pesky Geneva Conventions. Essentially saying that the Bush administration is guilty of what one might term as "high crimes and misdemeanors" for their blatant violations of U.S. law. Which is remarkable because one of the primary responsibilites of the executive branch is to uphold and enforce the law of the land. That includes both the UCMJ and the Geneva Conventions.

Anyway, Katyal was on Countdown with Keith Olbermann last Thursday to comment on the revelations in the New York Times that there are some secret DoJ memos floating out there that, in violation of U.S. law and Supreme Court, say it's OK to torture detainees until Dick Cheney's black heart is contented and sated by their screams. Or something to that effect - we don't know because, well, they're secret.

Katyal had some great commentary, and I was waiting for the transcripts to get posted. They are now, so here are some excerpts for your reading pleasure:

Not only the Supreme Court can't bring a halt to [illegal torture], the Constitution of the United States itself, Keith, evidently can't halt what they're doing.

I mean, it's really remarkable for people who claim to bash the notion of a living Constitution. These people manage to take ... their Constitutional advice from cast of the hit show "24" rather than from the founders of our Constitution itself.

I mean, it is really remarkable. The only way I think that we will be able to return to some sense of normalcy is if we have principled officials like the man you were talking about a moment ago, Jim Comey or Jack Goldsmith, responsible people. They can be conservative, as those individuals were, but they just have to fundamentally believe in the concept of law, and this administration doesn't. They think they're above the greatest document we've ever had, the Constitution of the United States.

More after the jump:

[W]hat it's really about, it's not about security and national security, what all this torture stuff is about and all these secret opinions are about something much more basic, that's what you're pointing to, Keith, is about incompetence. The fact that we had more than six years since those horrible attacks after 9/11 and the administration hasn't managed to prosecute anyone. Instead, what they've done is gambled on reckless theories that get struck down in the courts and that have managed to blot the reputation of the United States around the world.


The thing that worries me the most is that the chief enabler of incompetence is government secrecy. And this administration has been a master at government secrecy. They classify everything. They classify their views on the Constitution of the United States itself.

And what this is about, again, it's not national security. It's about covering up for their incompetence.

I mean, Keith, I spent two years as national security adviser at the Justice Department. I believe in classification for appropriate reasons. What these people have done has mocked the classification rules. What they're doing is really covering up for their legal incompetence.

We had an amazing story this week in which the number two official at the Justice Department, Jim Comey, it turned out, couldn't even learn about the NSA program because the administration feared, once he learned about it, he would strike it down. That's the number two person in our Justice Department and they cut him out of the loop.

So again, I ask, why is impeachment off the table?

[ed - you can see the Countdown clip on Youtube]


I know you keep asking, Mie, and I'm not sure if it's meant rhetorically or not, but impeachement isn't off the tabel as much as it's politically unfeasible. Believe me, I know that sucks, but it's reality.

Imagine this step-and-fetch-it Republican minority voting to impeach Bush. The Dems don't have the votes (even among their own ranks, which is sad in itself) to move it forward, so it's not going to happen. Maybe someone should introduce Articles of Impeachment on principle alone and make everyone go on record for where they stand in that, but any notion of those Articles passing is pure fnatasy. And that makes me very, very angry.

Nancy Pelosi has stated explicitly that impeachment is off the table. That could be because it's politically a non-starter, but I think it has more to do with the state of fear that the Democrats live in with regard to looking soft on terrorism, and that their consultants keep telling them it will be the Clinton impeachment all over again - president looks good, Congress looks bad.

While I agree that there's a good chance impeachment would not happen, it doesn't mean that Congress does not have a constitutional responsibility to introduce articles of impeachment and begin impeachment hearings.

You'll also hear claims that there's just "too much to do," like condemning a MoveOn ad or writing Clear Channel to condemn Rush Limbaugh. But the fact is, the staff available to support individual Senators and Representatives, and the Congress, is larger than it has ever been in history. There is no shortage of support and time, just a shortage of spine.

It makes me angry, too. And I'll keep calling my reps in Congress to tell them to support impeachment until Bush is out of office. You should, too.

Pelosi said impeachment was off the table in regards to the run-up to the war. Nobody would say that impeachment is off the table for any reason at all. Maybe that's parsing words, but let's be clear.

I think there are countless reasons to impeach this President, not the least of which being his utter disregard for the 4th Amendment and dismantling of Habeas Corpus. Add to that the deviation from the Geneva Conventions and you have a first class case. But the Republican minority knows full well that they were more than complicit in allowing these trnasgressions--they codified most of them! If they vote to impeahc, they vote to prosecute themselves. It ain't happening.

Really? I didn't think Pelosi was limiting her "off the table" comments to just issues related to the run up to war. It seems to me she is saying it's off the table, period, and that there are other ways to reign in this administration (which I guess we have yet to see from the Dems...).

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