Ryan Reilly has liberated a list — such as DOJ would release — of the OLC opinions written under Obama. As he notes, DOJ has refused to even give him a list, much the number, of the classified OLC memos.
What’s more interesting is what wasn’t included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it’s unclear how many classified opinions the OLC has issued during the Obama administration.
And it has redacted a ton of the names of unclassified opinions, citing deliberative privilege.
The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were “protected by the deliberative process, attorney-client, and/or attorney work-product privileges.” The names of the lawyers who wrote a number of opinions — including the memo on the president’s use of recess appointments during the Senate’s pro forma sessions — were also blacked out because their disclosure would “constitute a clearly unwarranted invasion of personal privacy,” the official wrote.
Some of the memos mentioned in the list have already been disclosed online by the OLC.
He also notes one memo the existence of which has already been revealed doesn’t appear on the list.
The Justice Department even redacted the title of the opinion on whether the president could unilaterally ignore the debt ceiling limit, though the existence of that memo was disclosed in response to a FOIA request from Talking Points Memo in 2011.
There’s in fact at least one other known OLC opinion that doesn’t show up on the list: a January 8, 2010 memo on whether the Electronics Communication Privacy Act would prevent telecoms from willingly turning over international communications to the government. It was first revealed in a January 2010 DOJ IG Report on Exigent Letters (see this post for background).
On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
Effectively, DOJ has already made clear that the memo says it can get international communications with no legal process.
But it didn’t release the name of the memo to Reilly.
There are two explanations for that. It has redacted the names of many OLC opinions under deliberative process, which it often argues means that it did not rely on the memo and therefore it did not influence the Executive’s final decision. That’s probably what happened with the debt ceiling memo; we know Obama hasn’t unilaterally raised the debt ceiling, meaning he hasn’t relied on the memo, so even though it has confirmed the memo exists, DOJ is hiding the memo because the Administration didn’t ultimately rely on it.
It may have redacted the title of the ECPA decision for the same reason. In the IG Report, at least, FBI claimed it would not rely on the opinion (no doubt meaning it would get all our communications via some other means).
Alternately, it could be considering this memo, which has been discussed at length, classified. Stranger things have happened with this Administration.
Update: Just checked, and via email at the time, Taylor said this is what DOJ told her:
The cover letter dated Feb. 8, 2011 to McClatchy said the OLC memo was protected by the “deliberative process privilege” under Exception Five. The letter also said the memo is “classified” and therefore “exempt pursuant to Exemption One, 5 USC 552 (b)(1).” The letter goes on to describe the memo as “a January 8, 2010 OLC memorandum analyzing the authority of the FBI under Section 2511 (2)(F) of the Stored Communications Act, 18 USC 2511 (2)(f).”
So they’re at least claiming a b5, and possibly claiming that its very name remains classified, in spite of repeated references to it in unclassified form.
In any case, the refusal to release even the name of memos that we know exist sure boosts the Administration’s claim to be the most transparent ever!
They came for the 4th Amendment, but it was necessary for the war on drugs. They came for the 5th Amendment, but due process had to be sacrificed for the war on terror. They came for the 6th Amendment, but confrontation had to succumb to classification and secrecy. They came for the War Powers Act because Libya was “required to be protected”. Now they are coming for one of the most fundamental of Constitutional checks and balances, the Congressional prerogative of the purse.
Who are “they”? They are, of course, the ubiquitous Article II Executive Branch. And they have a never ending thirst for usurping power, all in the name of efficacy. It is always necessary, it is always an emergency, there is always a reason, for them to take the power. They are the Daddy Branch, and it is always best to trust them. So they say.
Back when “they” were the Bush/Cheney regime, liberals, progressives, and Democrats in general, had a seriously dim view of accumulation and usurpation of power in a unitary Executive. When Dick Cheney, David Addington and John Yoo contorted existing law, gave it application never intended, and manufactured legal and governmental gimmickry to accomplish stunningly naked Executive power grabs, those on the left, especially the blogosphere, screamed bloody murder. Well, that is precisely what is afoot here with the Mint the Coin! push.
Where is that principled set of voices on the left now? Things are different when it is your guy in office I guess. Because the active liberal/progressive left I see out there is currently screaming to “Mint the Coin!” doesn’t seem to realize they are calling for the same type of sham rule of law that John Yoo engaged in.. This is most curious, because “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution. But, hey, its an “emergency”. Of course. It always is when the Article II Executive Branch comes to feed in the name of efficacy.
What is the value of Separation of Powers, and constriction of Constitutionally assigned powers to the branch to which they were assigned, and what is the value in insuring that an imperial Executive Branch does not usurp too many powers? Let James Madison, in Federalist No. 47 explain:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department (Publius, Federalist 47).
What is the import of the Congressional “Power of the Purse”? As James Madison said in Continue reading
I write about our dying empire just about every day in my links posts. But given the debt limit debate and Friday’s S&P downgrade, I wanted to look at four pieces that examine where we are more closely (note, all of these are well worth reading in full–do click through to read them).
There are two issues to grapple with: first, with the undeniable evidence that our government has become a clusterfuck, we have become incapable of taking obvious steps–like taking the profit motive out of our health care system or taxing the wealthy that just got a giant government bailout–that we need for the well-being of the country. At this level, S&P’s downgrade makes sense.
But then there’s the question of why we let a thoroughly discredited entity like the S&P be the one to dictate whether we merit our world leadership position or not. That’s not just a question of letting one of the agencies that created the bubble retain any position of authority in the world afterwards (though, again, the fact we left the rating agencies in place after the crash is another sign our governance has failed), but also why a nation-state would let a corrupted entity like S&P do so in the first place.
Therein lies the paradox here: the downgrade is at once a real measure of the collapse of our governance, one of the best symptoms of it, and a key piece of evidence of why our governance is failing. So what’s going on?
This column at Spiegel Online looks on this as a problem of culture. It argues the US has left “the West.”
America has changed. It has drifted away from the West.
The country’s social disintegration is breathtaking. Nobel economist Joseph Stiglitz recently described the phenomenon. The richest 1 percent of Americans claim one-quarter of the country’s total income for themselves — 25 years ago that figure was 12 percent. It also possesses 40 percent of total wealth, up from 33 percent 25 years ago. Stiglitz claims that in many countries in the so-called Third World, the income gap between the poor and rich has been reduced. In the United States, it has grown.
Economist Paul Krugman, also a Nobel laureate, has written that America’s path is leading it down the road to “banana-republic status.” The social cynicism and societal indifference once associated primarily with the Third World has now become an American hallmark. This accelerates social decay because the greater the disparity grows, the less likely the rich will be willing to contribute to the common good. When a company like Apple, which with €76 billion in the bank has greater reserves at its disposal than the government in Washington, a European can only shake his head over the Republican resistance to tax increases. We see it as self-destructive.
The same applies to America’s broken political culture. The name “United States” seems increasingly less appropriate. Something has become routine in American political culture that has been absent in Germany since Willy Brandt’s Ostpolitik policies of rapprochement with East Germany and the Soviet Bloc (in the 1960s and ’70s): hate. At the same time, reason has been replaced by delusion. The notion of tax cuts has taken on a cult-like status, and the limited role of the state a leading ideology.
Now, it is true that America’s political culture has been hijacked, and that those who have hijacked it used hatred as a way to convince others to act against self-interest. But that’s what (perhaps) distinguishes us from Europe; that’s what explains why we, a country with our own currency, can be in as dire a situation as Europe with its common currency. Moreover, I’m skeptical whether, mere weeks after the terrorist attack in Norway, Europe should really be lecturing the US about hate.
Craig Murray looks elsewhere–at the military we feed at the expense of feeding our own people. Continue reading
As about everyone knows by now, the great debate is still ongoing on the issue of the debt ceiling. The frustration of those on the left with the intransigence of the Republican Tea Party, coupled with the neutered Democratic Congress, has led many to call for President Obama to immediately “invoke the 14th”. The common rallying cry is that legal scholars (usually Jack Balkin is cited), Paul Krugman and various members of Congress have said it is the way to go. But neither Krugman nor the criers in Congress are lawyers, or to the extent they are have no Constitutional background. And Balkin’s discussion is relentlessly misrepresented as to what he really has said. “Using the 14th” is a bad meme and here is why.
The Founders, in creating and nurturing our system of governance by and through the Constitution provided separate and distinct branches of government, the Legislative, Executive and Judicial and, further, provided for intentional, established and delineated checks and balances so that power was balanced and not able to be usurped by any one branch tyrannically against the interest of the citizenry. It is summarized by James Madison in Federalist 51 thusly:
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.
We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
which must be read in conjunction with Madison in Federalist 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.
This is the essence of the separation of powers and checks and balances thereon that is the very Continue reading
My biggest complain about this statement from Raúl Grijalva is that he doesn’t say who threw Democrats and the people they champion under the bus: President Obama.
That said, his comments about the crossroads facing the Democratic Party are spot on.
This deal trades peoples’ livelihoods for the votes of a few unappeasable right-wing radicals, and I will not support it. Progressives have been organizing for months to oppose any scheme that cuts Medicare, Medicaid or Social Security, and it now seems clear that even these bedrock pillars of the American success story are on the chopping block. Even if this deal were not as bad as it is, this would be enough for me to fight against its passage.
This deal does not even attempt to strike a balance between more cuts for the working people of America and a fairer contribution from millionaires and corporations. The very wealthy will continue to receive taxpayer handouts, and corporations will keep their expensive federal giveaways. Meanwhile, millions of families unfairly lose more in this deal than they have already lost. I will not be a part of it.
Republicans have succeeded in imposing their vision of a country without real economic hope. Their message has no public appeal, and Democrats have had every opportunity to stand firm in the face of their irrational demands. Progressives have been rallying support for the successful government programs that have meant health and economic security to generations of our people. Today we, and everyone we have worked to speak for and fight for, were thrown under the bus. We have made our bottom line clear for months: a final deal must strike a balance between cuts and revenue, and must not put all the burden on the working people of this country. This deal fails those tests and many more.
The Democratic Party, no less than the Republican Party, is at a very serious crossroads at this moment. For decades Democrats have stood for a capable, meaningful government – a government that works for the people, not just the powerful, and that represents everyone fairly and equally. This deal weakens the Democratic Party as badly as it weakens the country. We have given much and received nothing in return. The lesson today is that Republicans can hold their breath long enough to get what they want. While I believe the country will not reward them for this in the long run, the damage has already been done.
A clean debt ceiling vote was the obvious way out of this, and many House Democrats have been saying so. Had that vote failed, the president should have exercised his Fourteenth Amendment responsibilities and ended this manufactured crisis.
This deal is a cure as bad as the disease. I reject it, and the American people reject it. The only thing left to do now is repair the damage as soon as possible. [my emphasis]
Kudos to Ezra for admitting he was dead wrong last year when imagining the Republicans might allow a deal that would let Bush tax cuts lapse.
A year ago, I was less concerned about the Bush tax cuts. I assumed, as did many in Washington, that the Republicans’ antipathy to taxes was a negotiating stance. Eventually, we would strike a “grand bargain” that would reduce spending and raise revenue substantially. The past few months have proved me wrong.
But having recognized that the Republicans will not let those tax cuts expire, Ezra then imagines (apparently in an effort to spin this debt deal as less than catastrophic) that they will let the tax cuts expire in December 2012.
Democrats will have their turn. On Dec. 31, 2012, three weeks before the end of President Barack Obama’s current term in office, the Bush tax cuts expire. Income tax rates will return to their Clinton-era levels. That amounts to a $3.6 trillion tax increase over 10 years, three or four times the $800 billion to $1.2 trillion in revenue increases that Obama and Speaker John Boehner were kicking around. And all Democrats need to do to secure that deal is…nothing.
This scenario is the inverse of the current debt-ceiling debate, in which inaction will lead to an outcome — a government default — that Democrats can’t stomach and Republicans think they can. There is only one thing that could stand in the way of Democrats passing significant new revenues on the last day of 2012: the Obama administration.
Of course, the entire premise assumes that the tax cuts won’t already have been extended by then.
In a couple of months, after all, we’re going to see the next hostage crisis as Congress debates a continuing resolution to fund the government. There’ll be another one in 2012. And I’m sure the GOP will find another several opportunities to stage a hostage crisis.
And why not? Obama has proven, over and over, that he will not take on the hostage-takers. Instead, with every hostage-taking, he just hands over one more thing for the Republicans to take hostage. The Republicans are perfecting a strategy that gives them complete control of a government while controlling just one of two houses of Congress. And each time they stage a hostage taking, Democrats allow outcomes that make the economy worse, all in the name of saving the economy.
But even without another hostage-taking, Ezra’s take assumes that Obama would let the tax cuts expire, even while he admits that the Administration doesn’t want that to happen.
The White House’s strategy in the debt-ceiling negotiations has reflected its ambivalence, with Obama trying to extract either as much revenue as Republicans would allow or as little as Democrats would accept. Obama even offered Boehner a deal in which the Bush tax cuts would be extended right now, so Republicans wouldn’t have to fear a subsequent negotiation in which they lacked leverage. Boehner rejected that deal and, in doing, might have saved the safety net.
But the Obama administration doesn’t want to take its second chance. They argue that the economy will still be recovering in 2013, and so it’s not an ideal time for a large tax increase. True. But what happens in 2012 is not simply setting tax policy for 2013. It’s setting tax policy for decades to come.
Frankly, I agree with Ezra, that if these tax cuts don’t expire–if we don’t start making the rich pay their share to support this country–our country is sunk. I agree that we need to pressure the White House to get serious about revenue.
But think about how the Obama Administration is using this tax cut. He talked about it during the election, he has talked about it repeatedly since then. Yet every single time Obama has an opportunity to do something about it, he manages to cave.
It is serving the same function as abortion does for the Republicans: the promised policy used to get people to vote, even while delivering on that promise always remains in the future.
The problem is, as important as abortion is, having or not having choice won’t collapse the country. Obama’s refusal to do anything to tax the rich will.
Has there ever been a populist movement cheering for default & austerity?
We’ve seen default situations around the world, and austerity programs imposed as a result. But popular political movements in FAVOR of it?
Wrong to describe as populist movement calling for austerity. I think it’s partially populist partially astroturf calling for chaos.
Take a look, for example, at who Yochi Dreazen claims is riding herd on the TeaParty ideology at the moment.
Addington has taken on a new role as enforcer of tea party dogma during the intensifying partisan bickering over the debt ceiling. From his perch as the Heritage Foundation’s vice president for domestic and economic policy, Addington is throwing verbal thunderbolts at House Speaker John Boehner’s current debt-ceiling proposal, which he argues will pave the way to tax increases.
The merits of Addington’s arguments about the need to oppose Boehner’s proposals are in some ways less interesting than the simple fact that Addington is the one publicly making them.
And while I’m sympathetic with those who express horror that our torture architect is now whipping the pro-default vote, I think it worth looking more closely at what Addington said to whip the vote.
This man, after all, championed two unfunded wars. In fact, as he and his boss were putting the final touches on the lies that would justify the second, illegal war, his boss overrode the Treasury Secretary’s fiscal concerns about one of several tax cuts, stating, “Reagan proved deficits don’t matter.” And that guy–one of the guys involved in blowing up the deficit with wars and tax cuts–had this to say:
The government has racked up $14.294 trillion in debt — thought of by no-one as a little credit card debt. The spend-tax-and-borrow crowd, currently headed by President Obama, has been in charge in Washington too long. They have mortgaged the futures of our children and grandchildren. Our government is so deep in debt that the share of debt of a baby born today is $45,000.
It is time for the spend-tax-and-borrow crowd to stop. As the President indicated, conservatives want deep spending cuts. In contrast, President Obama wants more taxes, a terrible idea. First, the government already takes too much money from the pockets of Americans in taxes. Second, if Americans give the government more money in taxes, the government will just find ways to spend it, rather than using it to pay off the public debt. Third, raising taxes reduces investment, which cuts economic growth and kills jobs.
So the Heritage Foundation, which of course first invented the legislation–health care reform–that ultimately set off the TeaParty, pays the guy who said, “We’re one bomb away from getting rid of that obnoxious [FISA] court,” the guy who wielded his pocket Constitution like a sword as he did battle to shred it, to attack those who “spend-tax-and-borrow,” ignoring all the time that the folks who have been in Washington too long are those who “spend-cut-and-borrow.” Addington’s own people.
Meanwhile, the grassroots part of this? They mustered about 50 people for a rally in DC yesterday, one which many of the TeaParty members of Congress attended. And yet as a desperate John Boehner tried to wield what weapons he had to win votes (the TeaPartiers already led him to get rid of the all-important pork he might have used to persuade the TeaPartiers, and Boehner seems to have given up his former ways of distributing checks on the floor of Congress as bribes), one after another TeaPartier refused to budge, even in the absence of any remaining grassroots movement.
In other words, the TeaParty grassroots movement that used to exist is just the excuse, at this point, for those trying to finish the job they started in 2001 redefining our government.
With the chaos that default will cause, think how much easier it will be to convince voters they need a unitary executive?
Indicative of the praise is this tweet from Keith Olbermann:
You know my criticisms of this POTUS. In this news conference he has been absolutely effing kickass, and properly pissed off.
David Corn of Mother Jones tweeted:
O was as passionate and as close to angry as he gets. #debtageddon
And Corn is now on Lawrence O’Donnell’s show on MSNBC, where Lawrence the “Eleventy Dimensional Chess Scold” himself just said of Obama’s presser:
“It was a brilliantly effective appearance for his reelection.”
And there is the problem isn’t it? Obama really was, and is, worried more about his reelection than he is the welfare of the country and the entirety of its citizens who are not members of his cherished moneyed elite and financial sector magnates.
The details seemed to ebb and flow over the last few days, but this from Bloomberg sums up the basics of what Obama was willing to pull the trigger on:
Two congressional officials said the White House told Democratic leaders it was pursuing a deal to cut spending, including on Social Security and Medicare, and a tax overhaul that could raise $1 trillion. That provoked an angry reaction yesterday from Senate Democrats, who said they feared they might be asked to swallow steep reductions in programs and trims to entitlement benefits with no assurance of higher tax revenue.
Right. What Obama was caterwauling about being “left at the altar” was his willingness, nee burning desire, to make huge cuts in spending and social safety net programs, in return for the possibility of a tax reform later.
And, make no mistake, Mr. Obama is absolutely desperate to make that deal in order to get the debt ceiling issue off the table until sometime after his reelection campaign. His “Grand Bargain” is shit for the economy, shit for almost all Americans safety net now and in the future; it is only good for the howling idiots in the Tea Party sphere and, of course, the reelection campaign of Barack Obama.
So THAT is what was “left at the altar”, and why Barack Obama was suddenly so apoplectically passionate about it. And, yes, it must be stated Boehner, Cantor and the Tea GOP are even more craven and lame than Obama here, but that is pretty weak tea to hang your hat on if you are a sentient being. And that, folks, was the way it was on the day the debt ceiling fell to the floor.
But, fear not trepidatious Americans, Mr. Obama is going to try to save your future and his “grand bargain” again tomorrow! Gee, what dedication.
UPDATE: Paul Krugman understands the ugly truth here, having issued an article today entitled “What Obama Was Willing To Give Away”. Exactly.
[The wonderful and appropos graphic is by the one and only @TWolf10]