We now have an innovation in executive power. During the Bush Administration, mid-level functionaries would be found to write legal justifications for waging war, committing acts of torture, or what have you. Now, during the Obama Administration, the top lawyers are free to give their considered opinion on these issues. But the President will simply overrule them.

Things were going along pretty well for the Bush Administration Apologists Alumni Association. Sure, they were out of their old offices, but things were good. Obama adopted their wars as his own, the economy has sputtered along long enough to have become (in the public’s mind) at least as much Obama’s fault as theirs (thus the cries of “deficits! deficits! deficits!” from those who launched us into two wars), and most of the BAAAA have landed in cushy lucrative new digs.

Then Obama had to ruin it by getting bin Laden. Suddenly, all the old discussions are back — at least as far as torture goes — and this has at least some of them very worried, like Michael Mukasey.

He should worry. A lot.

As has often been noted, the White Paper the Bush Administration released on January 19, 2006 largely repeats the analysis Jack Goldsmith did in his May 6, 2004 Office of Legal Counsel (OLC) opinion on the warrantless wiretap program. So I decided to compare the two documents.

Not only did such a comparison help me see things in both documents I hadn’t seen before. But there are a number of things that appear in the White Paper but not the unredacted parts of the opinion. Some of this, such as Administration statements after the warrantless wiretap program was exposed in 2005, simply serve as the publicly acceptable discussion of the program.

Former OLC nominee Dawn Johnsen has a must-read op-ed today describing how the Bybee memo damaged the Office of Legal Counsel. Is there something specific Johnsen is responding to?

The Senate Intelligence Committee will take up the report by Physicians for Human Rights alleging torture experimentation by the CIA. The US was not created as a torturing country; let’s see if our ideals overcome and throw light on this troubling chapter.

Physicians for Human Rights (PHR) released today the results of a landmark investigation that, according to the organization’s press release, “uncovered evidence that indicates the Bush administration apparently conducted illegal and unethical human experimentation and research on detainees in CIA custody.” PHR is asking President Obama to “order the attorney general to undertake an immediate criminal investigation of alleged illegal human experimentation and research on detainees conducted by the CIA and other government agencies following the attacks on Sept. 11, 2001.” They are also seeking other investigations by Congress, the Department of Health and Human Services, and the Department of Justice.

Meanwhile the Justice Department still has nobody at OLC, as hundreds of opinions requiring expert advice pile up.

As I reported on Monday, DOJ lost not only John Yoo and Patrick Philbin’s emails from the period when they were writing the Bybee Memos. It also lost at least 10 documents on torture, a number of them that went into the development of the torture memos.

In this post, I’m going to test a hypothesis that OLC may not have included “cramped confinement” in its torture plans until it removed “mock burial.” If I’m right, it means after having been told OLC would not approve mock burial, OLC and CIA instead just renamed what they were doing as “cramped confinement” so as to get it past those in DOJ who were opposed to allowing the US to use mock burial in its torture program.

It took five attempts – the committee seemed to always run out of time, or lose a quorum – but today the Senate finally approved the nomination of Dawn Johnsen to head the Office of Legal Counsel.