Subject: GTMO, Torture, renditions, etc.
From: "Christopher Edley" <[email-masked]>
To: "John Podesta" <[email-masked]>, "Susan Rice" <[email-masked]>, "Stern, Todd" <[email-masked]>, "Lisa Brown" <[email-masked]>, "Don Gips" <[email-masked]>, "Melody Barnes" <[email-masked]>, "Cassandra Butts" <[email-masked]>
Date: Mon, 10 Nov 2008 14:52:07 -0800

Todd et al.,

I'm writing to ask where we stand with respect to working through the
national securities law and civil liberties law concerning the topics
above.  I believe we agreed that some cross-talk between the National
Security team and the DOJ/Domestic team is required, but I don't recall
getting to closure on which individuals have the lead.

The exchange I had with Susan Rice at the last Board meeting is illustrative
of the difficulty. There can be an inherent tension between the national
security perspective and the Rule of Law perspective. As we know, this
played out in the Bush Administration rather tragically, and the vast
majority of legal observers believe that the DOJ participants acted in a
manner that -- at a minimum -- violated fundamental ethical and professional
principles, if not the Law.  As a formal matter, whatever course of policy
and action the Obama Administration adopts on these issues, clearance by OLC
and the Attorney General will be required, as well as review by White House
Counsel.

So, I believe the Transition should likewise get the right set of
perspectives around a table sooner rather than later.

There is another, related issue that deserves some attention: The role of
OLC in relation to the State Department Legal Adviser (L).  The Bush
Administration broke with precedent by shifting more authority to OLC for
definitive resolution of questions of international law and treaty
interpretation.  L was consulted, but the formal lead rested with OLC.
Earlier administrations allowed the State Department to have the lead.  What
will be the practice in the Obama Administration?  There are arguments in
both directions. It would be good to get this resolved before the appointees
are selected.

I am interested in these issues, having taught National Security Law. But I
know there are several terrific lawyers who could contribute a lot:  Eric
Holder, Jamie Gorelick, Larry Tribe, Cass Sunstein, Alex Aleinikoff.

-- 
(personal email)
Christopher Edley, Jr.
Professor and Dean
UC Berkeley Law School