Legal Commentary

The blogosphere is buzzing with the Harold Koh and Dawn Johnsen nominations.

Scott Horton offers the following assessment as to WHY these two well-respected law professors have triggered such negativity among certain constituencies:  it's all about transparency and accountability for torture policies. At the Daily Beast, he writes:

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 [...] Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama?s legal policy team.

Horton suggests the possibility of criminal lawsuit in Spain is triggering this perceived need for secrecy:

But in the past week, questions about Obama?s commitment to transparency have mounted. On April 2, the Justice Department was expected to make public a set of four memoranda prepared by the Office of Legal Counsel, long sought by the American Civil Liberties Union and other advocacy organizations in a pending FOIA litigation. The memos, authored by then-administration officials and now University of California law professor John Yoo, federal appellate judge Jay Bybee and former Justice Department lawyer Stephen Bradbury, apparently grant authority for the brutal treatment of prisoners, including waterboarding, isolated confinement in coffin-like containers, and ?head smacking.? The stakes over release of the papers are increasingly high. Yoo and Bybee are both targets of a criminal investigation in a Spanish court probing the torture of five Spanish citizens formerly held in Guantánamo; also named in the Spanish case are former Attorney General Alberto Gonzales and three other Bush lawyers. Legal observers in Spain consider the Bush administration lawyers at serious risk of indictment, and the memos, once released, could be entered as evidence in connection with their prosecution. Unlike the torture memos that are already public, these memos directly approve specific torture techniques and therefore present a far graver problem for their authors.

Thoughts?