Another important development on this issue happened this morning. In prepared remarks for a hearing at 11:00 AM today before the House Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, the AAG-OLC will state that waterboarding is illegal. Live webcast is available at http://judiciary.house.gov/

Justice Says Waterboarding Not Legal
By LAURIE KELLMAN
Associated Press
February 14, 2008

WASHINGTON (AP) — A senior Justice Department official says laws and other limits enacted since three terrorism suspects were waterboarded has eliminated the technique from what is now legally allowed, going a step beyond what CIA Director Michael Hayden has said.

"The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding," Steven G. Bradbury, acting head of the Justice Department's Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.

"There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law," he said. It is the first time the department has expressed such an opinion publicly.

Bradbury in 2005 signed two secret legal memos that authorized the CIA to use head slaps, freezing temperatures and waterboarding when questioning terror detainees. Because of that, Senate Democrats have opposed his nomination by President Bush to formally head the legal counsel's office.

Bradbury's testimony comes as majority Democrats in Congress try to clamp down on interrogation methods that can be used on terrorism suspects.

Congress on Wednesday moved to prohibit the CIA from using waterboarding and other harsh tactics, despite Bush's threat to veto any measure that limits the agency's interrogation techniques.

The prohibition was contained in a bill authorizing intelligence activities for the current year, which the Senate approved on a 51-45 vote. It would restrict the CIA to the 19 interrogation techniques outlined in the Army field manual. That manual prohibits waterboarding, a method that makes an interrogation subject feel he is drowning.

The House had approved the measure in December. Wednesday's Senate vote set up a confrontation with the White House, where Bush has promised to veto any bill that restricts CIA questioning.

The legislation bars the CIA from using waterboarding, sensory deprivation or other harsh coercive methods to break a prisoner who refuses to answer questions. Those practices were banned by the military in 2006.

Bradbury's comments go a step further than Hayden's last week. In testimony before the House Intelligence Committee, the CIA director acknowledged for the first time publicly that the CIA has used waterboarding against three prisoners.

Hayden said current law and court decisions, including the Detainee Treatment Act of 2005, cast doubt on whether waterboarding would be legal now. Hayden prohibited its use in CIA interrogations in 2006; it has not been used since 2003, he said.

The Detainee Treatment Act of 2005 prohibited cruel, inhuman and degrading treatment for all detainees in U.S. custody, including CIA prisoners.

Waterboarding is still officially in the CIA tool kit but it requires the consent of the attorney general and president on a case-by-case basis.

First I would like to give my view on the subject at hand, the invitation to A.G. Makasey to serve as the 2008 Commencement Speaker. As we all know the most controversial aspect of his nomination hearing was his unwillingness to declare waterboarding to be torture. For those of you who are caught up in the dispute over the wisdom of the invitation, given that torture has been his "signature" issue, I hope you have had a chance to read Professor Kanstroom's Memo on the subject. To my mind that memo can leave no doubt as a matter of Constitutional law, International law, Treaty Law, and Morality that waterboarding must be denounced as torture.

I read the first comment to learn that the Justice department has declared it illegal. Nevertheless, President Bush continues to threaten a veto of the pending legislation making it unlawful, which is to say that at the moment Justice considers it illegal but Bush does not want it declared illegal as a matter of explicit law of the country. There is no longer any question that the Executive order to use torture was given. Even the decision to erase the tapes is evidence of a coverup of what else but an illegal action. If it is illegal now then it stands to reason that it was illegal when the CIA engaged in it then. Professor Kanstroom's memo is irrefutable and the Justice department declaration yesterday is an acknowledgement of that.

This does not answer the question before the Law School at the moment about what to do about the existing invitation. Critical to that question is whether the students, through their representative, issued the invitation. As far as I recall the students have the right to choose their commencement speaker, unless the dean and faculty considers the choice ill advised for some important reason involving the reputation of the law school. If the A.G. was chosen by the students, free of any pressure, then I think a rescission is wrong. If after fuller discussion the student body has changed its mind, under some form of democratic deliberation then the only course open is to request the A.G to withdraw his acceptance.

If on the other hand, the student representatives decision was the result of pressure from the faculty or Administration, then I think they have every right to politely rescind the invitation, explaining the basis for the rescission.

Because none of the current students know me and would like some insight into where I am coming from, if you have the patience, I would like to introduce myself. I am a Prof. Emeritus and taught Constitutional Law classes and seminars for the last 20 years during my forty year tenure at BCLS. I am presently enjoying my retirement during the winter months in Hawaii. I see former Dean Avi Soifer as often as possible, without getting in his hair. He is now serving as Dean at Hawaii University Law School. I served under four outstanding Deans during this period: Father Drinan, Richard Huber, Dan and Coquilette. In my view all had been outstanding deans, each with their own leadership style. I served under Dean Garvey during his first term as Dean. For those who know me (40 years of alums and colleagues past and present) I was always kind of a gad gadfly, expressing my views on events and policies that involved governance of the law school, in direct, open and honest ways. I am sure many members of the community felt that I was brash, judgmental, or combative. (Some might use less neutral terms.) I always supported student rights and interests. I was very active in pressing for Clinical education against strong faculty opposition at the time, I also was a strong proponent of the creation of the Third World Law Journal, that many of the faculty strongly opposed at that time. I remained an advisor to the TWLJ, HHRP, and Lambda until I retired. I mention all this as way of in order to give you a clear understanding of my propensities.

Given all that you can guess what my views on our current Dean are. I opposed his appointment as dean, as did the student reps, as well as most if not all student minority organizations at the time. Under University rules the faculty interviews candidates and sends the three top choices to the the President and he makes the final decision. At the time the first and second choice of the majority of the faculty was not Professor Garvey, but he had enough supporters to be one of the names sent to the President. The faculty was prohibited from ranking the candidates but we were allowed to individually send our opinions to the President, and many of us did. A year prior to this search one of the first acts of the new President,Father Leahy, was to cut short the term of Dean Soifer, in mid year. The faculty sent a delegation to meet with Father Leahy to ask him to change is mind, partly because it was causing division on the faculty but mainly because we did not have enough time to conduct a nationwide search. Father Leahy was unconvinced and the faculty made a search effort leading to the outcome that the faculty was unable to recommend any of the interviewees. We chose one of our members as an interim Dean. A full year long search was then instituted, as noted above.

Once Professor Garvey became Dean, the next order of urgent business was to fill two faculty slots. A few months later the search Committee had narrowed the field, with input from the faculty, the hiring meeting took place. As is often the case the Dean had his favorites, as is his prerogative. Ordinarily, a Dean's preferences were accorded due weight. But not this time. The faculty voted for two other candidates. The Dean became very angry and said and I believe this is a quote: This faculty will not hire a conservative or a Catholic. I think that outburst shocked many of us. It was true that the faculty at the time was mainly liberal in terms of faculty matters and views relating mainly to decisions of the Supreme Court, but there were quite a few conservatives and many more who fell somewhere in between. As for the religious breakdown, there were a few Protestants and an even split among Jews and Catholics. I was sitting next to the dean at the time and was the first to regain a voice. I said that the religion of a candidate had never been a factor in faculty hiring and I hoped it never would be. I also asked after a few months here how could you claim that you knew this faculty. After my response one after another joined in, mostly in more measured tones to remonstrate with the dean. What may have clinched my fate, if I was not already a marked man, was a comment by Professor Peter Donovan, who could be even blunter than I am. Peter has a loud voice and he addressed Dean Garvey in words that surprised me and for obvious reasons remain unforgettable to me: "Dean Garvey you had better listen to Professor Berney's words because he is the conscience of this faculty. Both our candidates by the way went elsewhere and we learned later that one of them, a woman, was Catholic.

From my perspective there is no question in my mind that until I retired, and beyond, Dean Garvey retaliated against me. But now that our clashes are over and time has past he is not important to me anymore. What I still resent, however, the damage he has done to a great law school, that I love and honor. I am not just talking about the drop in the rankings since he became Dean. All faculties have devisions and coalitions, but in the past they shifted and and were bygones as different issues presented arose. He created a state of chronic divisiveness and most damaging of all, he undercut what used to a very democratic institution, that even included our students, the heart of any educational enterprise. It will take time to restore those democratic values and undo the harm that a culture of autocratic leadership does.

One last point. All of our former deans marveled at how our students, compared to students of other schools described their experience as a happy one. I hope that is still true. At another time of national chaos, during the sixties and the Vietnam war, student movements were demanding inclusion in the process of running things. The consequence of the demands they made and won back then was the creation of student government that could insist upon being heard. There was a moment back then that the students actually crashed a faculty meeting to have their demands heard. One of the faculty moved that we adjoin to another place. I said what are frightened by, "these are our students." And we listened to them and the days of student involvement evolved. I am only guessing, but I think that the commencement invitation is the consequence of what those students achieved back then it appears to me that is still robust.

I apologize for the length. I always regretted that for students there is little historical memory and I offered, my historical rambling, because I thought it might be relevant to what is taking place at the moment. A commencement that has some steam in it is more fun and more memorable. In these times under the yoke of what may be the worst government in our national history, leaders who should have been impeached long since, it is only right that graduates who will soon stand before the Bar and take an oath (or affirmation) to the sanctity of the law, and the principles of our Constitution, there is no better place to have your voices heard on the issues of the day. Do not undermine the joy of the event for yourselves and families, talk to them beforehand, make your stand with decorum, by turning your back on a speaker if that is what you think you should do or coming up with other reasonable ways to express your displeasure.

Every so often in the life of a law school there are events that engage the students and the faculty as well as a body. I think this is one of those moments for you. I am certain I will be sorely criticized by many of my colleagues for sharing some of this history with you and revealing faculty deliberations.

I am saddened by the account Professor Berney posted. I remember him fondly not only as a great and fun professor but, on the light side, because he gave me the only A I earned as a law student. Experiencing retaliation for voicing what seems to be a clear violation of Title VII is regrettable. The more I hear about the Dean's alleged actions, the less I am able to support the Law School. The time has come for the Dean to tender his resignation.

Not really knowing any of the people involved, I'm taking everything with a few grains of salt and generally withholding judgment. I'm very interested in this Mukasey-as-speaker debate, particularly in relation to the Founder's Medal. I hate posting and acknowledging my ignorance at the same time, but I really want to say: let's keep this about what's going on right now. Professor Berney says: Dean Garvey is not important to him anymore. Let's not make this personal, and let's keep the debate current, please. Furthermore, I think one theme that everyone shares is the importance of the students of BCLS, in the shaping and managing of the School. Concern over one person's actions will hopefully not detract from the support the school (read: the students) enjoys from its professors, students, and alumni.
The time is still the time for questions.

I attended the LSA Open Forum and three things were made very clear:

1. There was no student involvement in the selection of this year's commencement speaker, the decision to extend the invitation to Mukasey, or the decision to award him the Founder's Medal. The LSA was not consulted.

2. There was no faculty involvement in the selection of this year's commencement speaker, the decision to extend the invitation to Mukasey, or the decision to award him the Founder's Medal.

3. According to Marianne Lord, Associate Dean of Institutional Advancement, Dean Garvey did not make the decision to invite Mukasey entirely on his own. There was a discussion at the "Dean's table" (which I believe includes all the deans of the law school). She said, "Everyone at the table needs to take responsibility for the decision."

The notion that this person would be invited to speak at BCLS commencement and receive a Founder's Medal is the most outrageous thing I have heard since learning of the administration's transparent attempt to manipulate the alumni association.

As a '96 grad and partner at Baker & McKenzie, please know you have my full support to counter these subversive efforts. I agree with the other comment posted - it is time for Dean Garvey to go.

Professor Berney, I fondly remember your National Security Law class and am delighted to hear your words of inspiration again, albeit in such unfortunate circumstances. Best wishes to you.