JURIST - Hotline: No heroes at the Justice Department

Ben Davis [University of Toledo College of Law]: "I recognize that we are in a moment in which we are desperately looking for (present or former) legal heroes in Justice, but while the Ashcroft hospital bed story makes great cinema - there are no great legal heroes here.

Might I say that those who attempted to block extralegal conduct under one theory (Constitution Article II) only to allow it under another theory (Authorization to Use Military Force) are hardly heroes. It is merely a quibble between subalterns.

It appears patently clear that the original Office of Legal Counsel basis was a Yoo opinion asserting the Article II powers of the President. Andy Card and Alberto Gonzales (in their White House roles) were trying to get the renewal of the program pursuant to that opinion.

When Goldsmith came to OLC in 2003 or so and reviewed the prior bases, the Article II basis appears to have been found wanting. Cormey and Goldsmith's solution? They sought to anchor the program under the broad vision of the AUMF rather than under the Article II. Thus, they were unwilling to authorize the original version and sought changes.

As we know, last year, a federal judge in the Eastern District of Michigan rejected that version also on statutory and constitutional grounds. That decision is under appeal. I despair that either the appeals court or the Supreme Court will care enough about civil liberties to sustain the courageous federal district judge. We shall see.

Moreover, in an effort now to put in place the so called FSIA Modernization Act - classified and unclassified versions apparently floating through Congress right now - it is likely that whatever the appeals court decision, Congress will consider and possibly adopt new language pre-election that I suspect will bow to security concerns.

So it is good that a story has come out, but it is not as good a story as we are maybe being made to think."