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notes Preface 1. 487 US 654 (1988). 2. 487 US at 729 (Scalia, J., dissenting). 3. 487 US at 728–29. 4. See Nancy Baker, Conflicting Loyalties: Law & Politics in the Attorney General’s Office, 1789–1990 (Lawrence: University Press of Kansas, 1992); and Cornell Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (Armonk, N.Y.: Sharpe, 1992). chapter 1: “Where there is smoke” 1. While living in Switzerland in 1983, Rich was indicted by the US government on charges of illegally trading with Iran as well as tax evasion. Rich never returned to the United States and remained on international most-wanted lists until President Clinton formally pardoned him on January 20, 2001. The controversy surrounding Rich’s pardon stemmed in part from the fact that his former wife had made large donations to the Democratic Party and to the Clinton library while President Clinton was still in office. 2. See, for example, Carrie Johnson, “Waterboarding Is Torture, Holder Tells Senators,” Washington Post, January 16, 2009. 3. “Holder: W. H. should act ‘within dictates of wiretap law,’” CNN Online, January 15, 2009, http://politicalticker.blogs.cnn.com/2009/01/15/holder-presidents -should-act-within-the-dictates-of-surveillance-law/. 4. Josh Meyer, “Eric Holder: Waterboarding Is Torture: Attorney General Nominee Vows Review of Bush Administration Practices,” Chicago Tribune, January 16, 2009; and “Holder Says He Learned from Marc Rich Pardon,” Associated Press, January 15, 2009. 5. Nomination of Eric H. Holder, Jr., Nominee to Be Attorney General of the United States: Hearing Before the Senate Committee on the Judiciary, 111th Cong., 1st sess. (Jan. 15-16, 2000), 101-102. 6. See 28 C.F.R. Part 600 et seq. Under 28 U.S.C. 510, the attorney general has the power to make such provisions as he considers appropriate authorizing any other officer, employee, or agency of the Department of Justice of to perform any function of the attorney general. 150 • notes to pages 3-9 7. Devlin Barrett, “Sen. Leahy Proposes Truth Panel on Bush Era Abuses,” Associated Press, February 9, 2009. 8. Bobby Ghosh and Michael Scherer, “Obama: Still Opposed to Truth Commission ,” Time, May 21, 2009, http://www.time.com/time/nation/article /0,8559,1900035,00.html. 9. See, for example, the memo from the Office of the Assistant Attorney General to Alberto Gonzales: “Standards for Conduct of Interrogation,” August 1, 2002, http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf. 10. 18 U.S.C. §§ 2340 et seq. implements in part the obligations of the United States under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The most controversial of the Office of Legal Counsel memos (drafted in 2002) concluded that even though an act may be considered “cruel, inhuman, or degrading,” it does not necessarily inflict the level of pain that 18 U.S.C. 2340 prohibits, and thus does not subject an interrogator to criminal prosecution. Additionally, it states that a defense of “necessity or self-defense may justify interrogation methods” that would otherwise violate 18 U.S.C. 2340. 11. Carrie Johnson and Joby Warrick, “Bush Anti-Terror Policies Get Reluctant Revisit,” Washington Post, September 13, 2009. 12. 50 U.S.C. §§ 413 et seq. (1947 and as amended through 2004). 13. Jennifer Rubin, “Eric Holder’s Justice Department: It’s All Politics, All the Time,” Weekly Standard, August 10, 2009, 22. 14. Carrie Johnson, “A Split at Justice on DC Voting Bill,” Washington Post, April 1, 2009. 15. The two most notable examples were (1) Watergate special prosecutor Archibald Cox, who was terminated in October 1973 and (2) Whitewater special prosecutor Robert Fisk, terminated by the Special Division of the DC Circuit in 1994. 16. Benjamin Ginsburg and Martin Shefter, Politics by Other Means (New York: Norton, 1999), 163. 17. Carrie Johnson, “Prosecutor to Probe CIA Interrogations,” Washington Post, August 25, 2009. 18. 28 U.S.C. §§ 595 et seq. (1994). The act actually lapsed for the first time in 1992, but was then reauthorized by an act of Congress on June 30, 1994. 19. 28 U.S.C. § 596 (as amended, 1996). 20. The Future of the Independent Counsel Act: Hearings Before the Senate Committee on Government Affairs, 106th Cong., 1st sess. (Feb. 24–Apr. 14, 1999). 21. 50 U.S.C. §§ 413 et seq. (1947 and as amended through 2004). 22. 42 U.S.C. Ch. 103, § 9601 et seq. (1980). [18.220.154.41] Project...

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