How DOJ Put Off Confessing To Their Pixie Dust

After folks noted this footnote from Steven Aftergood’s request that the Office of Professional Responsibility look into the Pixie Dust* surrounding Executive Order 13292 and Dick Cheney’s claims to be a Fourth Branch…

2 A copy of the OLC letter is attached, and may also be found online here: . The July 20, 2007 letter did not become public until December 11, 2007 when it was published by Marcy Wheeler on her blog Empty Wheel ( One day later, the document was released to me under the Freedom of Information Act by OLC.

…we got into a discussion of the chronology behind OLC’s rather remarkable timing in their response to Aftergood. So I asked Aftergood for some clarification. This is what he said regarding the OLC’s insta-FOIA response on December 12:

You published the doc on December 11, and I followed with this later that day.

OLC finally responded to my FOIA request by letter dated December 12. They never denied my request, but they certainly took their sweet time.

So apparently OLC noticed that Aftergood already had the document, so they finally decided they could give it to him. Nice to see they respect the FOIA process so thoroughly.

But I’m at least as interested in what went on before that. Aftergood explains:

I had been requesting DoJ and OLC responses to the January 2007 ISOO inquiry every 45 days or so since last March. And for a while they kept telling me there were no responsive documents. Finally in September, the Office of the Attorney General told me that they had a document (which turned out to be the Bradbury letter) but instead of releasing it, they forwarded it to OLC for processing. Three months later, after it was published on Empty Wheel, OLC decided to release it.

So Aftergood had asked for a response several times before OLC finally decided to finally let Bill Leonard know that the EO he had been enforcing for four years didn’t mean what he understood it to mean. I presume, before that point, there was nothing responsive because DOJ was just blowing off Leonard’s request entirely; when you blow off a civil servant entirely, it leaves no FOIA-able tracks. In September (after Alberto Gonzales’ departure, of course) they admitted they had a document. But they continued to stall on giving Aftergood the document for three more months, until it got out through Leonard.

Do you get the feeling they don’t really want us knowing about their little Pixie Dust games?

*Pixie Dust is the process by which, armed with an absurd ruling from OLC, the President doesn’t have to change any Executive Orders he decides to ignore or violate, he can simply ignore or violate them, and it’s the same, legally, as if he formally modified them.

105 replies
  1. phred says:

    Evidently Mukasey has yet to use his whisk broom in the OLC office. Lets hope he hasn’t misplaced it already.

    • emptywheel says:

      Bush is still trying, after several years of being thwarted by Congress, to install Bradbury as the official head of OLC. That was probably the biggest reason why Senator Webb came to work so often over the holidays.

      • phred says:

        Does Mukasey have the authority to dismiss him? From your comment I would assume the answer is no. Which makes me wonder, how many positions at DoJ are directly appointed by the President? I’m just curious who at DoJ will retain the ability to be unaccountable to Mukasey (assuming he has any inclination to demand professional conduct from the members of his department).

        • emptywheel says:

          No. Though Ashcroft was instrumental in preventing John Yoo from taking over at OLC. Since the AG basically has to “sign” the OLC opinions, I think the AGs get serious say.

          Thing is, Bradbury’s in a fake situation, acting as acting AAG, without the senate approval, for year’s now. I would imagine Addington’s rather happy with that.

          • klynn says:

            Thanks for the “story” EW. Appreciate the follow-up. It puts much into context.

            Got to admit, Bradbury

            acting as acting AAG

            and Cheney acting as AExPrv gets one a bit confused as to where the Constitutional reality is “acting”… Some shell game…

            Thanks to you, bmaz, lhp, Christy, Jane and all…I am seeing through the pixie dust and grasping some reality of the rule of law.

  2. klynn says:

    Got to love that Pixie Dust…It can be interpreted as being a tangible…

    especially when it comes to absurd rulings from the OLC

    Touché EW (on the definition!)

  3. AZ Matt says:

    Pixie Dust can get blown way once people notice it. It probably won’t last much longer due its absurdity. Most likely it is the koolaid powder spread around during the Ashcroft/Gonzo era in DOJ.

    • emptywheel says:

      Well, if we do manage to blow the Pixie dust away, is it retroactive to the things they have not yet publicly invoked Pixie Dust on yet? Most especially, Dick Cheney’s Pixie Dust insta-declassification of Valerie Plame’s identity.

      • AZ Matt says:

        When a Democratic President is elected will he/she support opening the records on all the dusty Pixies?

        • MadDog says:

          When a Democratic President is elected will he/she support opening the records on all the dusty Pixies?

          Pixies, passed over for promised personal pardon, purportly pensively preparing for possible perdition pending Progressive’s planned Presidential possession.

          • TheraP says:

            In between patients… thanks for this:

            Pixies, passed over for promised personal pardon, purportly pensively preparing for possible perdition pending Progressive’s planned Presidential possession.


        • Ann in AZ says:

          To be honest, although way too candid, I can’t imagine anything less savory to a new President than to get into the deep weeds of the Machiavellian gyrations that made up the previous administration. I believed that Gerald Ford pardoned Nixon primarily because the subject was taking up way too much of his time. Edwards, as a former prosecutor and possibly having a better prospective of the importance of prosecution for crimes, might be the only one even tempted to look into past lawbreaking. But even he would have to be very discriminating in selecting what to send to Justice and what to just let go of.

          • Hmmm says:

            I believed that Gerald Ford pardoned Nixon primarily because the subject was taking up way too much of his time.

            I didn’t, and still don’t, and won’t forgive any D prez who pardons any member of the W Administration.

            • Ann in AZ says:

              I didn’t, and still don’t, and won’t forgive any D prez who pardons any member of the W Administration.

              A D won’t have to use any pardons; they can just fail to investigate and prosecute, and maybe let a few statutes of limitations pass without charges.

          • bobschacht says:

            To be honest, although way too candid, I can’t imagine anything less savory to a new President than to get into the deep weeds of the Machiavellian gyrations that made up the previous administration. I believed that Gerald Ford pardoned Nixon primarily because the subject was taking up way too much of his time. Edwards, as a former prosecutor and possibly having a better prospective of the importance of prosecution for crimes, might be the only one even tempted to look into past lawbreaking. But even he would have to be very discriminating in selecting what to send to Justice and what to just let go of.

            IMHO, this is one of the reasons to vote for Edwards. Hill & Obama will argue for letting bygones be bygones, so that they can appropriate whatever remains at their convenience.

            Or am I being too cynical?

            Bob in HI

  4. skdadl says:

    EW, I’m sure I should remember but I don’t: how did you have access to the 20 July letter (in December, noted) when no one else did? Or was it just that no one else was looking?

      • skdadl says:

        So Leonard was free to release the letter, even though OLC was stalling? I’m getting there, slowly, but I’m just trying to make sure I grasp the legalities involved.

        • emptywheel says:

          As far as I know, yes. Leonard certainly didn’t ask me not to publish the letters, and he knew I was seeking comment.

          Then again, keep in mind it was just a few weeks before he retired from government service.

  5. BlueStateRedHead says:

    Three months later, after it was published on Empty Wheel, OLC decided to release it.

    hold on here. Is the DOJ reading this blog? If the old address was The Next Hurrah off of blogspot or something, one needs to know about EW to describe her in this way.

    Or did I miss some public conversation between EW and OLC.

    Elucidation wld. be lovely, Ew when you have a minute.

    • emptywheel says:

      No idea if DOJ is reading this blog–I’ve got less access to IP addresses over here than at TNH. But I’ve had some DOJ fans in the past. It’s also quite likely that after Whiteouse’s speech, they did a google alert for, I don’t know, Pixie Dust from Hell, and my blog came up.

      Also, that first post when I noted the implication of Whitehouse’s speech got a LOT of views (and Selise’s YouTube got even more views), so they may have found both of us that way.

          • BlueStateRedHead says:

            Ah! i know that one. I thought we had a YouTubie of EW speaking to Whitehouse speaking about their common concerns….. Defenders of the Constitution shoulder to shoulder. I did say I was punchdrunk, didn’t I.

  6. Hugh says:

    According to my scandals list entry 226, there is a question whether Bradbury (a co-founder of the Federalist Society) can legally function as AAG since he has been in the position more than 210 days from the collapse of his second nomination.

    Pursuant to Title5 of the US Code 3346(b)(2)(B): “if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve . . . for no more than 210 days after the second nomination is rejected, withdrawn, or returned.”

    I have that he was nominated on June 23, 2005 and again on January 25, 2006. He was nominated a third time on January 9, 2007. Aren’t his 9 lives up by now?

    • MadDog says:

      I’m glad to see someone hasn’t forgotten he’s past his “use-by-date”.

      And of course, since the only folks with the power to evict him are his bosses, ain’t gonna happen.

      If the Congress wanted to, they could include an amendment to any pending legislation denying him compensation, but it probably wouldn’t be sustainable over a Junya veto given the numbers.

      • cinnamonape says:

        I would think that since he is acting in an Unconstitutional capacity that nothing he touches is to viewed as legitimate. Anything that passes through his office is likely to be subject to challenge.

        And if the Congress stops paying him by adding the fact that his appoiuntment is Unconstitutional…what will be Bushes response? That he CAN’T bring his nomination before the Senate because it will be rejected?

        One more impeachable offense in my book!

    • looseheadprop says:

      At least Hans Von S had the decency to pack up his desk and go when he expired. This “I won’t go and you can’t make me” shit is grating on my nerves

      • bobschacht says:

        “At least Hans Von S had the decency to pack up his desk and go when he expired. This “I won’t go and you can’t make me” shit is grating on my nerves.”

        If his tenure has expired, aren’t all his decisions vulnerable to challenge in the courts?

        Bob in HI

    • emptywheel says:

      My understanding of this is that every time he is renominated, he gets a new clock on statutes that limit whether you can be acting after failing to be approved as the real thing. But I probably need to check that.

  7. radiofreewill says:

    As the Pixie Dust Lipstick wears off on all those Gooper True Believer Loyalty Brigade asses, the BushCo Pig looks a lot like a Tryanny – the Rule of One Man’s Ideology – Bullying around Our Democracy – the Rule of Law.

    Craven and Brazen – But in Secret – That’s BushCo Statecraft!

    Just don’t look too close! We’ve got to Keep the Fairytale Alive! We need everyone to keep movin’! Nothing to see here, folks…Tune-in to the MSM (mainstream media) for the details…

    And, whatever you do, don’t come to Emptywheel and FireDogLake unless You’re Looking for Reality, because The Pixie Dust Doesn’t Work Here!

  8. Hmmm says:

    So who would have standing to sue DOJ to make Bradbury vacate? Even declarative relief would probably do the job.

        • bmaz says:

          That would be Stephon Marbury versus [The fans in] Madison Square Garden. It is a nasty case; everybody is losing (especially the Knicks)….

          • BlueStateRedHead says:

            historical hysterical mixing it up metaphor. Except I thought that Sen. Whitehouse in FISA floor speech told us that Marbury vs. Madison has been cancelled. His point 2, IIRC.

  9. bmaz says:

    Criminal enterprises the size of the Cheney/Bush gang always scout their enemies; there is no question but that this blog is monitored.

    • MadDog says:

      Same here and IANAL. *g*

      Don’t lawyers tend to file complaints against any and all who may be a party to the issue?

      If so, how come there’s no complaint against Bybee? Seems like he started the ball rolling, so how come he gets a pass? Twas his signature on a lot of the referenced documents (though many were purportedly written by Yoo).

    • Hmmm says:

      bmaz, can you explain why you’re underwhelmed? If he gets declarative relief on even one of the claims, it would seem to open the door to criminal prosecution.

      • Hmmm says:

        For anyone not wading through the Padilla v. Yoo complaint: Padilla is suing for a declaration by the Court that his treatment was illegal and unconstitutional, for $1 from Yoo, for his attorney fees & costs (1-person law firm + legal clinic, so probably not colossal), plus whatever else the Court wants to toss him. So Yoo is not significantly at direct personal risk from this suit — though if Padilla wins on any of the causes of action, it seems clear to me that there is a possibility that follow-on proceedings could be very very serious for Yoo.

      • bmaz says:

        First off, as despicable as Yoo is, I am not sure he is a proper party defendant here. Secondly, I think his actions are probably entitled to qualified immunity. Third, I see a real problem establishing direct causation for Padilla’s damage elements. Fourth, despite the allegations in the complaint, I am not sure that NDCA is the proper venue. fifth, it is just not particularly artfully plead.

    • masaccio says:

      I really disagree about this complaint. First, Yoo isn’t going to get any of the standard bushco defenses: no state secrets, because of the public documents cited and attached to the complaint; and of course, no executive privilege for the same reason. On Volokh Conspiracy, Orin Kerr argues for immunity, but he cites Nixon v. Fitzgerald, a 1982 case. This is from the syllabus:

      2. Petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. P P. 744-758.
      (a) [see below]

      (b) The President’s absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation’s history. Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. While the separation of powers doctrine does not bar every exercise of jurisdiction over the President, a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President’s official acts. P P. 748-754.

      (c) The President’s absolute immunity extends to all acts within the “outer perimeter” of his duties of office. P P. 755-757.

      (d) A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to
      earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.

      The outermost perimeter of the duties of the President clearly don’t extend to unconstitutional acts or violations of law. That would be even more true of intellectually dishonest flunkies like Yoo.

      As to them, the syllabus says:

      a) Although there is no blanket recognition of absolute immunity for all federal executive officials from liability for civil damages resulting from constitutional violations, certain officials — such as judges and prosecutors — because of the special nature of their responsibilities, require absolute exemption from liability. Cf. Butz v. Economou, 438 U. S. 478. Determination of the immunity of particular officials is guided by the Constitution, federal statutes, history, and public policy.

      I assume Yoo will file a motion to dismiss. Procedurally, that means the facts in the complaint, including the attachments, are taken to be true. How does Yoo argue that this stuff isn’t torture? I note that there has never been a legitimate commenter here who has tried to argue that Padilla wasn’t tortured, and torture is a crime, not just a constitutional issue.

      Orin Kerr says there is a causation issue, with the caveat that he isn’t an expert on this kind of thing. Good caveat. We don’t have the right allegations at present, but it will be easy to search the public record to find all the statements that the CIA field agents insisted on approval of every torture technique before they used it. No opinion, no torture.

      I think Yoo has a real problem.

      • bmaz says:

        Oh, Yoo has problems up the ying yang over his (pardon the pun) tortured opinions. I am just not convinced many of said problems will result from this complaint. I do have at least some experience on these types of cases, and I see all kinds of arguments on causation. Hey, if they can get this thing to a jury, a good trial lawyer can make the pitch and let the jury decide; so who knows. As to qualified immunity application, look no further than how the issue was treated by John Bates in the Plame decision. Personally, I have problems with the way qualified immunity is used by the government in 1983 and other related civil rights based actions; but it is what it is and this complaint does not strike me as being very artfully crafted in order to avoid this and other Rule 12(b) pitfalls.

  10. JohnForde says:

    BMAZ! Why the pessimism? Legal immunity because of Yoo’s official capacity? Aren’t there some limits on that? Some of the detainees were tortured to death.

    What will it take to bring these MoFo’s to justice? A trick offering Yoo free plane tickets abroad? Or incensed patriots with duct tape, a gunny sack and a private plane to The Hague?

    I am not threatening Mr Yoo. I’m alerting him of the peril he faces if he step outside the U.S. . And I want to alert him of that peril again tomorrow and every day for the rest of his life.

    • BlueStateRedHead says:

      Why? Has anyone filed a charge against him as they have for Rumsfield in France? (Just hoping).

  11. klynn says:

    I know this is not new…

    The interrogation opinions (the secret ones -my emphasis)were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.

    Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”

    NYT’s 10/4/07

    He’s got a background working for Bell and then later defending telecom cases…

    Hmmm…I still say there are many reasons he is not gone. And many reasons he wrote these opinions and is pro telecom immunity. Perhaps…

  12. JohnForde says:

    1. Why is he not a proper party defendant?
    2. “Qualified immunity” IANAL so “qualified” is good news. Let’s breach that.
    3. Really? seems like a lynch pin to me?
    4. What would be the proper venue?
    5. Sowhadawegonnadoaboutit?

  13. BlueStateRedHead says:

    I did say I was punchdrunk, but it’s gone. Is there some reason my comment appeared and disappeared along with EW’s response?

    Weirder thing have happened. Learned last night that Snoopy dance trips the filters on DKos.
    Got to go. Will learn the reason for my fate later.

  14. chetnolian says:

    Just watched Selise’s Youtubes of Sheldon Whitehouse. A point he doesn’t make, and I don’t think I have seen made plainly here, is that, whatever the context the opinion was drafted in, as worded, to represent the law, it must apply not only to the Protect America Act but to absolutely everything. It ought to be possible to think of a dozen examples in seconds of just how absurd that would be. Anyone want to try?

  15. Mary says:

    Re: Von Spakovsky, Think P says his nomination is still in the works, so aren’t we still at the Mexican Standoff that was hinted at earlier?…..y-resigns/

    bmaz @ 36 – I’m a little underwhelmed by it at this stage too, but it starts an interesting ball rolling. I’d love to see them get this over into SDNY if there was a good way to do that. Did you seem the Elmaghraby case from there? Gov settled with Elmaghraby, but the Judge opened a bread box named Pannera Dora for DOJ with that decision. Among other things, he specifically said 9/11 is no excuse to ignore Constitutional protections and Bivens is available against those who made the policies and/or knew they were being implemented in an unconstitutional way (it was abuse of the post 9/11 roundups)and also that limited immunity didn’t prevent actions against Mueller and Ashcroft if they participated in unConstituional policy drafting or if they knew of and did nothing about unConstitutional implementation. He let loose the dogs of discovery on issues of policy, who participated, who knew what, when where and how, etc.

    I think that Yoo case has to be getting at that more than anything, and maybe by filing they’ll get some other lawyers from firms to come on pro bono, or get someone like CCR or the Brennan Center to chime in and start cleaning it up. By putting all the focus on Yoo, it’s a bad legal maneuver, but a great tactical and political maneuver to get him to start pointing fingers elswhere. And wouldn’t it be nice to see Bybee come down off his throne for depo on August Memo he signed out?

    Not a great complaint, but I’m stocking up on popcorn anyway.

  16. chetnolian says:

    It’s late at night here so I forgot to add that it is the second two propositions to which this especially applies.

  17. CTuttle says:

    This Maladministration knows no bounds…

    White House defies Congress, pointing to loophole in new law

    WASHINGTON – The Bush administration is going ahead with a controversial pilot program giving Mexican trucks greater access to U.S. highways despite a new law by Congress against it.

    The decision to proceed with the four-month-old program, which allows participating Mexican trucking companies to send loads throughout the United States, comes despite language in the recently signed catchall spending bill aimed at blocking it.

    The Department of Transportation is taking advantage of a loophole in the new law, which prohibits the government from spending any money to “establish” the program. The government says the new rules don’t apply to the current program since it was started in September.

    “The U.S. Department of Transportation will not establish any new demonstration programs with Mexico,” said Melissa Mazzella DeLaney, spokeswoman for the Federal Motor Carrier Safety Administration. “The current cross-border trucking demonstration project — established in September — will continue to operate in a manner that puts safety first.”

  18. Mary says:

    oops, bmaz, didn’t see your 48. Don’t disagree with any of it, but I’ll try to come up with the NY case on the qualified immunity issue. Which, btw, was issued only a little bit before the CIA tape destrucion IIRC.

    The causation issue is also dealt with in connection with the ruling on “establishing the policies” front. It wasn’t the final salvo, but that case was an intersting volley and I think Gov then tanked and settled.

  19. maryo2 says:

    Not a lawyer, reading Bivens actions for first time today. I read that before a person can be granted immunity, courts must first establish that the Constitution was violated. This looks like a catch-22 to me, because once it is established that Padilla’s rights were violated, then somebody must have violated them. If not Yoo, then who?

    But does “limited immunity” have pre-requisites?

  20. Mary says:

    62 – It’s one thing to be the one who authored an opinion that might say, for example, “in certain instances force and blows may be used to subdue a prisoner” and it’s a different thing to be the sadist prison guard who goes around and chains people up and beats the snot out of them whenever he/she feels like it, then claims the memo as “protection.” The physical actors (people taking the action) are usually the target of this kind of suit, when it is seeking to hold them personally responsible.

    • WilliamOckham says:

      You are undoubtly correct. On the other hand, the War Crimes Act of 1996 includes conspiracy. It seems completely obvious to me that Yoo participated in a conspiracy to commit torture.

  21. klynn says:


    This is for LHP…

    I think I found the Harman redaction…While reading a NYT’s piece which mentions Bradbury, I came across this:

    Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey,

    I think that may be what you are looking for… “combined effects”…

    This is the correction appended that ran on Oct 4, 07. EW wrote about it…

    I’ve tried to link but NYT has it come up an error. It is the Scott Shane, David Johnston and James Risen Secret U.S. Endorsement of Severe Interrogations October 4,2007 Correction Appended reading Washington, October 3-

    • MadDog says:

      This is for LHP…

      I think I found the Harman redaction…While reading a NYT’s piece which mentions Bradbury, I came across this:

      Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey,

      I think that may be what you are looking for… “combined effects”…

      Bless you klynn! That’s 16 letters and we have a winner!

      The link is Secret U.S. Endorsement of Severe Interrogations.

      And bless you again klynn because in that article is something I either didn’t know or had forgotten and that was this:

      Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside.

      I guess I have been totally unaware that it was the result of Goldsmith’s rejection of the warrantless surveillance program that prompted the threat of mass resignations.

      That is a stunner to me!

      • bmaz says:

        No, that is correct about Goldsmith and the “hospital scene”; although my understanding is that Goldsmith’s work didn’t initiate the concern over the issue, but was rather a key part of the bringing to a head of the already ongoing concern with a select group, including Comey, within DOJ.

      • bmaz says:

        I would also note that I am convinced that the real motivation behind that group of DOJ folks, including both Comey and Goldsmith, was one or more spankings and knuckle rappings administered by Kollar-Kotelly and/or other judges on the FISC. I fully believe these “principled conservative heros” would have blithely let this crap go on unabated if their hand was not forced by FISC to a point where they thought their own asses might be on the disbarment line; that is one main reason they get no love from me.

        • MadDog says:

          Yeah, I agree that the FISC rulings were instrumental, but as I say, I either don’t remember or had forgotten that Goldsmith’s work played any role at all.

          Twas a big “Doh!” moment when I re-read the article.

          My memory isn’t as good as it used to be, and at its best, was certainly never as good as you and Marcy. *g*

          • bmaz says:

            You can stop that sentence with Marcy; I am not squat on the details compared to her, nor many others here. Heh heh, If I have any talents at all (a questionable proposition, at best), it is in areas other than minute details.

            TheraP – Sure; I actually think there is a very substantial basis for bar action against several of the Bushie lawyer types. Although someone tried to file in Texas against Gonzales and it went nowhere (although that was predictable; bar actions are generally under the auspice of the state supreme court, which in Texas is chock full of friends of Gonzo and Bush)

            • TheraP says:

              That’s unfortunate… what you say about Texas. When it comes to being “licensed,” such as for us psychologists, then the State operates for the good of the consumer and the Licensing Board has psychologists on it but also citizens. Though lawyers do all the digging into the complaints for the Board. So it sounds more like a “guild system” for lawyers. Maybe I’m wrong.

              Well, I hope that in the end, at the very least, and that’s a tiny price to pay in some ways, that disbarment will happen for many.

              Thanks for your answer, bmaz.

              And by the way, your legal mind, to me, the non-lawyer, seems very sharp!’

              I did my dissertation in the area of “cognitive expertise,” and while our minds are not as good at hanging onto new details as we grow older, in our areas of expertise, we get sharper and sharper in making judgments, because our minds have created these wonderful neural networks for thinking clearly and concisely within the areas where we have really “chuncked” lots of conceptual information.

              So that’s the good news! That’s why I try to stick to what I know and do my best to “follow” the new paths being forged.

              Also, there’s a wonderful benefit to groups of people working together. Huge benefit. Like a supercomputer made up of people.


                • TheraP says:

                  Actually, I truly enjoyed doing that research. Which involved intensive interviews with two groups of 10 people each, novices versus expert therapists. With the variable of age added (within each group). I was so fortunate to be allowed to do something useful and interesting. (not always possible in psychology)

                  Found out some very interesting things, that I hadn’t expected. The oldest (two in their 70’s) experienced therapists were more willing to “break rules” and do what they deemed in the best interest of the patient (in a “set-up scenario,” where the clinic only allowed 10 visits.. an imaginary therapy, not real) This, I think, tells us about the flexibility of age as well as the willingness to confront nonsense when it’s not workable!

                  Next, the expert therapists were distinguished from the non-experts by some interesting personality factors: acceptance within themselves of issues related to hostility and dependency (which ultimate meant that they were more comfortable acknowledging that they deal with the same issues of very troubled individuals… without going into the whole research design, etc.) And also that the experts were much more likely to describe “using humor” as a salient personality characteristic, which they made use of in therapy as a means to connect with people, disarm their defenses, confront them gently.

                  I mention these things because they tell us, I think, about “wisdom” and that – in the end – is what your “research group” (that’s what I view it as) is all about. Trying to ferret out information and also trying to envision how a society might work out solutions to our terrible problems, using the rule of law etc.

                  Think how important is the ability to think outside the box, the “rule-breaking” of my oldest experts. How important is the ability to see that when it comes right down to it – I, as a person, am dealing with the same basic issues of any other person… we are all connected by that. And that humor is so important, also, as a characteristic of wisdom, as a way of connecting, of dealing with anxiety, of helping others to see the truth.

                  Sorry for the long comment here, but I think you can see how my own background/training, gives me a perspective which might, from time to time, help in this common task we, and others, are engaged in.

                  50 years ago I played soccer briefly. My image of what we’re all doing (here and elsewhere) is kicking a ball down a field. Working together to do that.

                  I can’t do the lawyer thing. I don’t have your younger brain, focussed like a laser on these topics, intuitively snapping shut like a steel trap (as mine does for topics related to therapy, personality dynamics, relationships… or as bmaz can do related to the law), but I’m trying to follow – here and elsewhere, and do my part, setting aside many other personal or professional things I might be doing… because I simply must address the social ills of this disastrous time – just as if a patient in terrible need had appeared on my doorstep.

                  One last thing. I see tpm as doing “crowd-sourcing” of factual info & analysis, with lots of people across the country and world. I see fdl as building a community of activists (ready to spring into action like a ferocious cat), different than kos, which is more shrill and rough and tumble but full of info coming from everywhere, and I see your group as a “research group,” which has organized itself around your intuitive and memory/info-organizational gifts… doing intensive work, at times very detailed, at times with brilliant syntheses.

                  So, FWIW… my informal summary of that too.

        • TheraP says:

          Speaking of “disbarment,” is there any chance of at least getting Yoo disbarred? By now I feel physically ill just at the sight of that man. It seems to me he is a dishonor to the law.

          • cinnamonape says:

            Is Woo a member of the Bar? I don’t know that he has actually practiced law anywhere. Seems he has only worked as a pumped-up paralegal for either a Supreme Court Justice, or the Feds, or as an academic.Not even sure if any of these required him to pass the Bar exam or be admitted to the Bar…even in D.C.

            • bmaz says:

              i could be full of crap on this, but my recollection is that law professors are kind of automatically jumped in to the bar where they teach on some type of provisional, but not full ticket; however, I may be confusing this with their ability to simply make limited court appearances within the framework of their teaching duties (clinic programs etc.)

            • TheraP says:

              Can one teach law without being admitted to the bar? (I hope not!)

              I’m sure it’s possible to check. Interesting question. And more than one? Recall that Harriet Myers had “forgotten” to pay her dues (?) related to the DC bar. So perhaps he has more than one place you could complain to.

              For MD’s and psychologists, there is a national registry, so if you lose your license anywhere, it gets posted there. And that dooms you!n They should have that for lawyers as well. If not… it needs to happen.

      • klynn says:

        Hey, glad I could help after all the help you bmaz, phred and all gave me when I could not get the new site to work on my computer.

        Thanks for posting the link too. All I would get from the NYT’s was an error message when I linked.

        That is a stunner about Goldsmith. I thought the content of this article interesting considering it is posted as a correction to the Oct 3rd story.

        Who prompted the correction? Goldsmith? This is an interesting question in itself…

  22. masaccio says:

    By now, I imagine everyone has seen that Jose Padilla sued John Yoo in Federal District Court. The complaint is here (.pdf)

    One thing its contains is this sentence describing the torture techniques:

    Some of these techniques and conditions were included in the “JFCOM-approved plan” for an unidentified individual detained at the Brig which was referred to by Vice Admiral Church in his May 11, 2004 “Brief to the Secretary of Defense of Treatment of Enemy Combatants Detained at Naval Station Guantanamo Bay, Cuba and Naval Consolidated Brig, Charleston,” attached hereto as Exhibit G.

    When I last checked, the complaint was not on ECF (it was expected to be posted late this afternoon, but I’m on Tennessee time) so I don’t have Exhibit G. I don’t recall seeing the term “JFCOM-approved plan” and I wonder if some form of it might be the redacted term from Harman’s letter.

    • bmaz says:

      Yoo’s bunk was written in bad faith in light of existing law, the Constitution and adopted treaties and conventions (Geneva); so, irrespective of United States v. Altstoetter, which as far as I can discern is still good law, I never thought Yoo got any protection on this front. But that is an “on the merits” distinction and not necessarily on point with the posture of the Padilla/Yoo suit; I have an inkling that Yoo gets qualified immunity just like Cheney et. al. in the Plame civil suit, which is a determination made pursuant to a motion to dismiss, effectively a quasi-jurisdictional basis, prior to defendants answering the merits of the complaint.

  23. Hmmm says:

    Guys guys guys — I buy that immunity from damages might well shield Yoo from the $1 in damages — but how the hell does it shield Yoo from the requested declaratory relief?

    • bmaz says:

      It is immunity from the process, i.e. the suit itself, not just the damages. Here is a link to the Bates’ memorandum decision in Plame. There is a full discussion of the issue therein in all of it’s contrived bullshitiness.

      • Hmmm says:

        Thanks for the link. But it sure looks like the entire analysis there is limited to the Wilsons’ requested relief of money awards. I am still not sure it would also apply to Padilla’s requested declaratory relief. Did the Wilsons also request declaratory relief that what was done to them was illegal and unconstitutional, as Padilla does?

      • masaccio says:

        I’m just too tired to read that nonsensical decision right now, but I scanned it, and it looks totally distinguishable: what idiotic alternative patchwork scheme of potential remedies is the worthless jerk battalion going to jury-rig to snow even the worst bushco appointee into saying in public with a straight face that tort law isn’t the appropriate remedy for torture? The allegations of the complaint are the basis for the analysis in Wilson, and will be the basis here too.

        • bmaz says:

          Agreed. Didn’t mean to imply you ought to really read the pile of junk (and it is a pile). Personally, I think under Harlow v. Fitzgerald not only should there be no qualified immunity available per se, I don’t think Yoo’s actions meet the threshold of being the acts of “a reasonable man”. However, as Bates’ decision proves (and I have some personal war stories that corroborate and serve as bleak reminders), courts bend over backwards to contrive application, and the FISA suits have shown this to be especially true when it comes to situations involving THE executive and his national security actions. I see a decent question on whether the complaint stakes out viable dec prayers; but I raise that as merely for discussion and thought, and as a devil’s advocate, not as any kind of opinion.

  24. WilliamOckham says:

    OT, but fascinating:

    While I was over on Harper’s site, I saw an article by Dorothy Thompson, reprinted from 1941, ‘Who goes Nazi’. The conceit is that she’s looking around the room at an American cocktail party and spotting which types would go Nazi, if Nazism came to America. Does this one sound like anybody in the Oval Office?

    I think young D over there is the only born Nazi in the room. Young D is the spoiled only son of a doting mother. He has never been crossed in his life. He spends his time at the game of seeing what he can get away with. He is constantly arrested for speeding and his mother pays the fines. He has been ruthless toward two wives and his mother pays the alimony. His life is spent in sensation-seeking and theatricality. He is utterly inconsiderate of everybody. He is very good-looking, in a vacuous, cavalier way, and inordinately vain. He would certainly fancy himself in a uniform that gave him a chance to swagger and lord it over others.

    The details aren’t exact, but she captures George Bush’s personality disorder perfectly. Go read the whole thing and see a few parallels between her Mr. C and our Mr. Cheney. She describes Mr C thusly:

    Pity he has utterly erased from his nature, and joy he has never known. He has an ambition, bitter and burning. It is to rise to such an eminence that no one can ever again humiliate him. Not to rule but to be the secret ruler, pulling the strings of puppets created by his brains. Already some of them are talking his language–though they have never met him.

  25. Mary says:

    80 – where you lead, I will follow. *g* That’s what I think too.

    65 – Oh, I’m just saying how things usually work, because there usually isn’t someone actually putting written solicitations to torture as “policy” out there. The fact they did did that here makes me reaching for the popcorn, bc I think with some massaging of the complaint via the motions that will be filed, Yoo, and the discovery process, are both going to yield some interesting things.

    65 – I don’t think so, bc the Padilla detention in the So Car brig was mostly a US military/DOJ operation, without as much CIA (reportedly at least). IIRC, the Pentagon report from the So Car brig did find violations of the Geneva Conventions for the treatment of Padilla and al-Marri, and while a few were mentioned (like the interminable isolation) there were also references to “other” tactics that were not openly described that constituted violations – you know why that happens (not spelling out what they are in the memo that might end up declassified and circulated at some point).

    69 – “outermost perimeter of the duties of the President clearly don’t extend to unconstitutional acts ” Again, IIRC, that was what the relatively recent SDNY case held, that putting extra-constitutional policies into place could be grounds for a Bivens action against the policy maker and opening up the door on discovery. Again, IIRC, after that opinion, there was a settlement, but the named parties who were kept in over motions to dismiss for limited or qualified immunity were Ashcroft and Mueller. I just wish Yoo’s case was in the same district.

    • bmaz says:

      You know, I agree with you, and masaccio as well, on the black letter merits on some of these arguments. This general area is one of the few that I actually bring some real life down and dirty experience. There are a lot of lawyers (especially academics and Constitutional types), as well as legal pundits, that constantly discuss the vagaries of fundamental due process violation litigation and trial practice; however, there are few that actually try the damn things because they are complex, fought tooth and nail to the gills by the best governmental defense lawyers going and they have unlimited budgets and full use of law enforcement to help them, and the suits are ungodly expensive to fund, which you the lawyer have to do one hundred percent of because the plaintiff/clients almost never have any money or ability to pay. If there is no, or only small recovery, you eat it. I (actually my firm I guess, but there were only four general partners and this overhead was allocated to me and one other because it was our case) once ate nearly $400,000 on costs and expenses on a single case that went south at trial. It could have been far, far worse if either of a couple of others went bad. Makes for great war stories and I can almost laugh about it now. Almost.

      At any rate, my point is that the cold black letter law on immunity and other presumptions of preference to the government often looks more reasonable than it ever turns out to be when push comes to in court shove. The Libby memorandum decision by Bates is a wonderful example. How the hell can Cheney and Libby be seen to be acting within the course and scope in outing an undercover spy-they can’t possibly be entitled to immunity (and masaccio is, of course, right that all inferences are deemed in favor of the plaintiff; that holds every time as long as you don’t expect, you know, any inferences to actually be given to the plaintiff). Yet that is exactly what happened, and that was exactly what I predicted would happen the second I read the Plame complaint and saw how it was framed. Few believed me on that one either until they saw the brutal truth in Bates’ memorandum pudding. Oh, and these contorted crappy rulings stand up on appeal because of the standards for review and even stronger deference to the executive.

      Curious they filed this thing in NDCA, and it certainly wasn’t out of comity and concern for the convenience of the defendant, Yoo. I fully expect they contorted their proper venue calculation somewhat with the thought of getting it assigned to Vaughn Walker who already has clearance on a whole host of national security type cases, as well as a pretty jaundiced eye to the Administration by this point. Also has the benefit of review by the Ninth Circuit when the inevitable crappy ruling comes forth in the trial court. Can’t say I disagree with this part of their tactical plan; notwithstanding your point on the recent SDNY matter.

  26. masaccio says:

    I recognize the validity of bmaz’s point on the difference between what looks like pretty clear law, and the actual results, especially in cases with political implications. I don’t do political cases (I am a bankruptcy lawyer by trade), but I have friends who do, and I must be terminally naive, because I am shocked by some of the things that happen in their cases.

    It looks like the point of the complaint is the vivid description of the torture. In the decision, first the judge writes out all of that, stating that the facts stated by the plaintiff are entitled to a presumption of correctness, accompanied by dozens of cites. Then the judge has to patch together some kind of argument to get Yoo out. The contortions in that part will be obvious to a casual observer, and the question is the limits of the willingness of the judge to show to the world that the judge possesses the level of intellectual dishonesty that will be required.

    Maybe that is where my naivete’ shows. I actually believe that few people will be willing to make such fools of themselves. Of course, Magistrate Judge’s Bates’ ludicrous opinion is a powerful counterargument.

  27. TheraP says:

    For Mary, massacio, and bmaz – or other lawyers – just wondering something:

    Even though these lawsuits against individuals like Yoo, or Gonzales, etc. may not succeed. From the point of view of “psychological warfare” or whatever you want to call it, would they not at the very least put the fear of god into these people, tie up their lives with litigation, give them sleepless nights? And would this not put all the torture details out there, as legal records in courts of law?

    What if lawyers from all over cooperated to assist others in building these cases… no matter how futile the end result might seem…. in order to deluge these criminals with legal proceedings?

    Would there not be some societal value in that? As well as some toll on those who have so perverted justice and the rule of law and our societal ideals?

    • masaccio says:

      If John Yoo were a normal human being, then lawsuits, and the consequent shaming, would hurt him. Most older lawyers talk to their clients about the psychological costs of legal battles from the outset and throughout the proceedings, to make sure the client is holding up ok.

      I don’t think Yoo is normal. First, he seems to lack empathy. If he had a shred of it, he would not be able to answer questions about his extreme positions, like the power of the President to order someone to crush the testicles of a child. From what we can see, this is a common trait among the enablers of Cheney, like Addington.

      Second, he is an ideologue. He doesn’t think of himself as an actor, more as a transcriber of the ideology, a medium through which its power is demonstrated. This shields him from any sense of responsibility. All he, a true believer, is doing is following the logic of his ideology to its conclusions. Even if he is held liable, it won’t matter, it will just be another example of the ignorant using illegitimate means to crush the truth.

      I like the idea of multiple suits. The problem is finding clients.

      • TheraP says:

        Thank you for your response. And I have to agree with your analysis of Yoo. That was my concern as well.

        (I too talk to people who want to go a legal route and get them to think carefully about how much stamina they have to go through a meat grinder.)

        I know Yoo is a sociopath. I know he lacks empathy. But sociopaths, when cornered, really cornered, can get depressed, have a meltdown of the core narcissism within. And it’s the “fear factor” I’d be after. He may totally lack empathy for others. But he might still have fear for his own “skin.” I can’t say for sure, but that’s why I’m thinking multiple lawsuits. And I totally agree your problem is clients. (black sites, people reduced to a catatonic state)

        Wish there were a way we ordinary folks could sue for the fact that these guys have drawn us into a kind of “complicity” against our will, by making this govt policy.

        Ok. I accept reality.

  28. klynn says:

    Hmmm are you out there today? I had a question about the FISA question I posted in previous thread that you responded on (the FISA, immunity, destroyed tapes question). Boy I would appreciated you, bmaz and MadDog discussing that one. It’s still nagging at me and do not have the legal background to answer my own questions. EW weighed in and I thought her answer sound…Then your comment reopened the can of worms.

    Hmmm January 3rd, 2008 at 9:22 pm

    I’m sure this is hopelessly EPU’d by now, but I think Klynn may well have a point — IF the telcos were not merely serving as data conduits, but also hoovering-up recordings of all data transmissions (as many people suspect), and later deleted said recordings. Further, if telco immunity kills this class of suits, then it also prevents all discovery in this area, where assertion of the state-secret privilege (the fave ploy to date) is likely to carry less weight.

    Thanks for your comment above and thanks for any additional help you might be able to give.

    • bmaz says:

      i responded briefly on that thread somewhere, but my basic take is that i just can’t see the linkage of these two things. If the govt. fed any of this torture stuff over the private tubes of telcos, it certainly would have been encrypted and without the active, direct knowledge and participation of the telcos. Maybe i am missing the real argument here?

      • phred says:

        Agreed. IIRC DoD still operates its own satellites for communications (among other things). I would imagine such sensitive information would be transmitted over dedicated government devices, if it was transmitted at all.

  29. TheraP says:

    If not the telcos, what about these “data mining farms,” (privatized info govt money suckers!)? Even if the info is incrypted, does it affect things if they have copies? Wouldn’t the “hoovering” have led to copies going to those places? (course they could be off-shore… and likely were designed to be so)

  30. posaune says:


    any thoughts on the pixie dust EO re yesterday’s pay raise for the feds? seems to be in the same boat as the budget bill.

  31. Hmmm says:

    klynn @ 94 – Glad you found my post of interest. Not sure what part(s) you’re asking for amplification on…?

    bmaz @ 97 – Encryption is not magic, and people who should know better put too much trust in crypto all the time. Further, some crypto is more equal than others. I emphasize that I have no specific knowledge in any of these cases, but there are several possibilities including but not limited to (1) Somebody goofed and used off-the-shelf secure teleconference crypto, which is breakable by folks other than the NSA including US telcos (and black site host governments or intelligence agencies); (2) Maybe US telco hoovering-up gets fed through (perhaps remote) NSA decryptor servers first, before getting stored by (perhaps) the telcos — allowing USG to say that a contractor and not the USG is doing the actual storing-and-retrieving snooping; (3) Even if NSA-quality crypto was used, international transmissions have historically passed through the NSA anyway (via ANZUS). I see no technical barriers to any of these situations producing stray copies that would eventually surface within the telcos and need to be destroyed — thus connecting to TortureTapeGate. Like with the Watergate break-in, it’s usually the human element that fails first, perhaps in this case by over-reliance on poorly understood crypto.

    TheraP – Goldsmith’s book gets a bit into a body of theoretical legal work (that he himself seems to have helped develop) trying to establish the idea that any person or group that seeks to change the policy or behavior of a government using any mechanism other than elections (or I guess war) should be considered hostile actors — I haven’t read Yoo’s books, but this resonates with his title “War by Other Means”. This work started by focusing on other countries’ use of courts to change US behavior, but it seems this is now also their view of legal-system activism directed against the USG by US citizens. Two consequences: This doctrine may affect DOJ attitudes toward such cases; and if attorneys in such cases start getting disappeared, we have a strong clue why.

    • bmaz says:

      Oh, I understand that; my point is simply that I don’t really see any liability for the telcos as to the torture tapes specifically. Other issues, that we have all been discussing forever, of course; but the torture tapes I just don’t see as any concern vis a vis the telcos. My mention of encryption was only for the purpose of saying that, even if any portions were transmitted over telco facilities (which i find somewhat questionable) it was not open and notorious so that the telcos have any culpable knowledge.

    • klynn says:

      Did you look at the CIA and DOD contracts for the telecos? They worth a look see.

      I know EW talked about this article before…Can’t find her post to link but here is a NYT’s article June 1st, 2007, Five Companies Win US Telecom Contract:…..A9619C8B63

      and this…..racts.html

      It appears that part of the RFP is protection of transmission. I think the telecoms have a good idea of what they might be handling…

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