Chertoff Keeps Waiving Laws

I’m kind of glad that I put off posting on the Administration’s waiver of environmental laws so it can put up its pathetic little wall on the border with Mexico.

In a sweeping use of its authority, the Department of Homeland Security said Tuesday that it would bypass environmental reviews to speed construction of fencing along the Mexican border.

Michael Chertoff, the homeland security secretary, issued two waivers covering 470 miles of the border from California to Texas well as a separate 22-mile stretch in Hidalgo County, Tex., where the department plans to build fencing up to 18 feet high into a flood-control levee in a wildlife refuge.

“Criminal activity at the border does not stop for endless debate or protracted litigation,” Mr. Chertoff said in a statement.

The announcement angered environmental groups, which have raised concerns through lawsuits and public hearings about the damage that fencing could cause to wildlife. Property owners, particularly along the Rio Grande, have also objected to what they considered federal intrusion on their land and access to the river.

That’s because Marty Lederman, in the first of a series on the Torture Memo, noticed something no one has yet noticed in the memo.

From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief’s prerogatives.

The memo’s application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I’ll discuss in further posts. And this section is the heart of the Opinion — the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.

Here’s the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."

In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.

The head of the Criminal Division at the time was Michael Chertoff (now Secretary of Homeland Security). Nine days before the memo was issued, President Bush nominated Chertoff, like Bybee, to be a federal judge on a U.S. Court of Appeals. [emphasis Marty’s]

In other words, Lederman believes that Chertoff gave John Yoo (who, as Marty notes, was seemingly working without the authority of the Assistant Attorney General in charge of OLC), the approval to say that a bunch of criminal laws–including those prohibiting torture–do not apply to those conducting war. Lederman suggests that Chertoff shares responsibility for the bastardization of the rule of law that is the Torture Memo.

In almost precisely the same time period, you will recall, Chertoff was allegedly telling well-connected Republican banana companies that it didn’t matter if they continued to support right wing terrorists, so long as they helped supply intelligence on the terrorists.

Marty’s tidbit puts Chertoff’s massive exemption for the goddamned wall in a different light, doesn’t it? First the terrorist supporting banana company. And then his goddamned wall. And, as it turns out, Chertoff appears to have been involved in waiving torture laws.

130 replies
  1. bobschacht says:

    Oh, good. Thank you, EW, for painting a nice big target on Chertoff’s back. Now if only the Democrats in Congress cared enough about the Constitution to haul his ass before a hearing and ask him what the heck was he thinking?

    Bob in HI

  2. PJEvans says:

    The debate might be less endless and the litigation less protracted if guys like Chertoff had more respect for the existing laws and regulations, as well as how their wonderful [snark] plans will affect Joe Average.

    Chertoff should be up for impeachment, too.

  3. Peterr says:

    The title of last Saturday’s episode of NPR’s “This American Life” was “The Audacity of Government.” One segment of the show dealt not with the US/Mexico border, but the US/Canada border. Since 1908, a joint US/Canadian commission has dealt with boundary issues, but now the Bush Administration is trying to quietly repudiate or remake the whole deal.

    Here’s how they describe the opening of the show at the TAL website:


    Host Ira Glass talks with Yale law professor Jack Balkin about what he calls the Bush Administration’s “lawyering style,” a tendency to fight as hard as it can, on all fronts, to get what it wants. Ira also plays tape from a news conference with New York Senator Charles Schumer, in which he takes the Justice Department to task for refusing to pay death benefits to the families of two auxiliary policemen who were killed in the line of duty, even though federal law grants those benefits. (5 minutes)

    Act One. The Prez vs. The Commish.

    Ira Glass tells the story of a little-known treaty dispute with far-reaching ramifications for our understanding of executive power. The dispute is between the President and one of his appointees…to the International Boundary Commission with Canada. This little-known commission carried out its function without fanfare or incident for over a hundred years, until a couple of retirees in Washington State built a wall in their backyard and, quite literally, set off an international incident. (23 minutes)

    Rule of law means nothing to Chertoff nor his boss in the room with no corners.

    • bobschacht says:

      Host Ira Glass talks with Yale law professor Jack Balkin about what he calls the Bush Administration’s “lawyering style,” a tendency to fight as hard as it can, on all fronts, to get what it wants.

      I heard this NPR show, too, and Glass had more to say about this “lawyering style.” Part of it was the basic offensive philosophy that if you go for everything, you might get something, but if you only go for something in the first place, you might wind up with nothing. The whole broadcast merits a listen just for this insight into their playbook.

      We can see this played out in the WH FISA gambit, where they were swinging for the fences with no thought of compromise, and after hitting a home run in the Senate, struck out in the House. Now they’re talking “compromise,” but count the silverware, folks, because we know what they mean when they say “compromise.”

      Bob in HI

      • emptywheel says:

        Last I checked we had 10 Amendments in the Bill of Rights. Odd ones go on the left, like forks, even go on the right, just under the drinking glass.

        That what you’ve got?

        • bobschacht says:

          In response to bobschacht @ 8

          Last I checked we had 10 Amendments in the Bill of Rights. Odd ones go on the left, like forks, even go on the right, just under the drinking glass.

          That what you’ve got?

          Well, I’m worried about the missing steak knife.

          Bob in HI

            • bobschacht says:

              In response to bobschacht @ 20

              With this administration, I suggest looking in someone’s back.

              Actually, with the number of people whose asses are in a sling, I’da thought that there would be a whole lot more back-stabbing by now, as the rats leave the sinking ship.

              Or, do the rats know something that we don’t?

              Bob in HI

              • sojourner says:

                “Or, do the rats know something that we don’t?”

                I suspect that all of these idiots have a plan to escape somehow. Although, judging from reaction to the Yoo memo that was released yesterday, maybe some of them have suddenly realized that their world is not as large as it was…and maybe there is nowhere to run. Maybe it is just my imagination, but I feel the tide turning — and I also sense fear from these goombahs! Preznit Chimp’s faux pas today trying to abruptly end someone else’s press conference tells me that he is becoming very uncomfortable being in the limelight.

                I keep hoping that Cheney will decide to make one of his midnight trips to wherever, and some brave soul who has the keys will yank his passport so he can’t come back (you know, just for shits and giggles!)…

                Seriously, if I were an attorney (and I really thought about pursuing that profession at one time), I would be so angry with what this administration has done to undermine my profession that I would be looking for every means possible to hold each and every one of them liable. Lawsuits would be one way to go if the criminal statutes are not viable. For the future, though, I would not be surprised to hear that a defendant attempts to do what Bush has done: “It does not apply to me.”

                • earlofhuntingdon says:

                  How many pardons can Bush fit on the head of a pin?

                  Separately, Yoo claims that no provisions of the criminal law apply to the military during “wartime” (declared or undeclared)? A soldier away from a combat zone (oh, wait, the world is our combat zone), can’t “murder” another one, or a prisoner, a Chicago taxi driver or foreign government official posing no immediate physical threat to anyone?

                  No wonder the JAG corps is so pissed off. A lot more people should be. If only Lawless John had been around for the Nuremberg trials, we’d need never have held them. Nor under John’s interpretation of the law, if applied in principal to their behavior, could we have convicted them. They were defending the Homeland from the terrorist threat posed by the worldwide Jewish conspiracy. [snark]

                  The ramifications of Yoo’s thought line – which he may have developed with a lot of help from Chertoff (and Addington?) – don’t seem to have been considered beyond their purpose in legalizing behavior Cheney had already determined he would authorize.

          • earlofhuntingdon says:

            Turn around; it’s in your back. Fingerprints are a C-12 matter, though; can’t tell you whose they are.

    • skdadl says:

      Peterr, thanks very much for that link, which I will watch tomorrow. (I’m toddling off to sleep soon.) From what we know up here, though, and without having seen the segment, I would modify this statement a bit:

      Since 1908, a joint US/Canadian commission has dealt with boundary issues, but now the Bush Administration is trying to quietly repudiate or remake the whole deal.

      It’s true that “the whole deal” and a lot of other whole deals are being “remade” by executive fiat (they call them “administrative agreements”), but our “executive” (sheesh: we’ve never had to use that term before) is every bit as involved as yours, I fear.

      I wish I could say that you big guys are bullying us little guys into things, but the truth is that our current dear leaders are all too eager to “harmonize” with Washington however they can, and the border above all they care about. To keep the trucks rolling over the Ambassador Bridge, our current PM will agree happily with Bush about just about anything (and has), and even if we replace him with a slightly more civilized Liberal, that statement will hold.

      Our elites have given up. The strongest organizing voice for the SPP (Security and Prosperity Partnership, officially acknowledged in all three of the U.S., Mexico, and Canada, although I’ll bet you hear almost nothing about it, and that’s because it’s the executives’ way of arranging things “administratively” without running them past Congress or Parliament) is a Canadian Liberal, John Manley, who (not entirely coincidentally, methinks) just led a panel up here arguing us into staying into Afghanistan for as long as … well, as long as Bush (or whomever) wants us there. It’s like that.

      • skdadl says:

        Oh, dear. That “whomever” should just be “whoever.” Forgive the pedantry, not to mention the self-consciousness, but I’m supposed to be an editor. Eeps.

    • earlofhuntingdon says:

      Who besides Derek Flynt picks a fight with the Canadians? Why? Europeans think of them as Americans with manners. Who besides Bush? He’ll pick a fight with the law, anytime, anywhere. He’ll pick a fight with anybody who upholds it, anybody who has anything he wants: timber, uranium, fresh water, neutrality, goodwill, or control over the once mythical, now meltingly real Northwest Passage.

      Bush is a caricature of the bad guy in every western ever made. He hates him some marshalls and judges, he hates him some sheep herders and barb wire fencers, and he loves him some cattle, the bigger horned the better. And he wants all the water rights and grasslands he can beg, borrow or steal, don’t make no difference to him.

  4. Mary says:

    Maybe related, maybe OT, but now that we have this document released, are there any rumblings about the release of the CIA techniques authorization memo? Forthcoming?

    • emptywheel says:

      This memo was released pursuant to the ACLU’s FOIA to DOD (it was released in the same batch as the DOD NSL documents, I guess). So if we want to use this release to leverage other releases (which might have to come from Congress, since CIA has already responded to the equivalent of the same FOIA–it’s in that FOIA request that CIA may have violated orders to save documents), we’d need to make this enough of a scandal to force the govt to yield.

  5. Mary says:

    btw – there ought to be some paperwork involving that Crim Div concurrence. Wonder who researched and penned?

  6. pajarito says:

    And soon, environmentalists in opposition to unlawful walls on the border will be called terrorist-sympathizers or worse. A few may find they are tortured, or at least have trouble boarding airplanes.

    When lawful means of checking these maniacs in office fail (e.g. impeachment), what is left?

  7. Peterr says:

    Claiming to speak for the OLC, which Yoo did by issuing this memo, without having the authority to do so is unbelievable. (OK, this is BushCo. It’s believable. But still . . .) It also must be — surely it must be! — illegal.

    How in the world does Yoo get away with issuing a memo he had no authority to issue? The fact that no one questioned it at DOD says to me that the fix was in.

    • emptywheel says:

      Don’t forget that Steven Bradbury is effectively doing the same, when he continues to act as Acting head of OLC even though, according to at least some understanding of the Vacancy Reform Act, he cannot continue to serve in this position.

      And it was under that authority, for example, that he wrote an opinion saying Miers and Bolten (or maybe it was Rove) didn’t have to testify.

      • Peterr says:

        And if no one on Capitol Hill is going to exercise any oversight, why should the folks at OLC or anywhere else at DOJ care?

        The Rubber Stamp Republican Congress did a lot more damage than most folks realize. Enabling this kind of behavior through their inaction will have ripple effects that last for a generation.

      • bmaz says:

        I have the same issues with Bradbury, but, arguably, he is in different standing since he is at least theoretically acting head. Yoo was not to the best of my understanding. In a way, I kind of agree with Peterr that it is questionable for it to have gone out under Yoo.

        Secondly, WTF is up with YooTuber citing Chertoff in the first place? What SkeletorCryptkeeper had to say was of no moment whatsoever. Might as well cite the concurrence of Barney the Bush mutt. Actually Barney might be smart enough not to sign on to that pile of crap.

        I said this somewhere else earlier, but I’ll repeat it here. So, now that we (and I presume the Congresscritters if they can get their hands out of the deep pockets they are continuously plumbing for campaign cash) have seen the beyond bogus reasoning in, and classification of, the torture memos, how can Congress go one inch further on the FISA bill without complete disclosure of all OLC, and any other, legal opinions underpinning the surveillance program? You know the quality of legal reasoning in them isn’t going to be any better than the pure unadulterated crap from Yoo that has been dissected for the last 24 hours. Congress needs to stop cold in it’s tracks and demand those opinions to so be made public. Immediately. I almost wonder if the torture crap isn’t cover for a cave on FISA.

  8. klynn says:

    What is the possibility that he is the “in the gate” threat? I recall reading that he may have dual citizenship but will not confirm his mother’s citizenship history.

    Anyone know?

    • maryo2 says:

      From link above.
      SEN. CARL LEVIN: Now, let’s go back in time. Did you object to the definition in the memo in 2002?

      MICHAEL CHERTOFF: As I said, because I don’t remember the way it was specifically worded, I can tell you that my role in dealing with the memo was limited to this: I was asked to communicate what my views were as a kind of practical prosecutor about how a statute like the torture statute would be applied. And my essential position—again, this is talking to other lawyers, so it’s really lawyer to lawyer kind of discussion—was that when you are dealing with a statute with a general standard and an intent issue, the question of good faith and an honest and reasonable assessment of what are you doing becomes critical, and whether or not a particular type of thing that someone proposes to do violates the statute is going to depend, or whether a prosecutor views it as a violation of the statute, is going to depend a great deal upon whether the particular technique is specifically mentioned in the statute, or if it’s not, whether the people who are thinking about doing it are making an honest assessment about whether what they’re going to do rises to the level of the statute. I guess my bottom line advice was this: you are dealing in an area where there’s potential criminal liability, you had better be very careful to make sure that whatever it is you decide to do falls well within the—what is required by the law.

  9. JohnLopresti says:

    Chertoff’s petition for writ of certiorari standoff against Defenders of Wildlife and SierraClub regarding the fence boondoggle; who sent these fencebuilders on this junket? just filed. Chertoff is using the same spate of illicitudes as justification for the fence as he is in his hortatorical denials that 10,000,000 increase in decibels from medium range sonor does not damage life behaviors of several hundred thousand sea mamals and fish in the sonar case. Looks like this year is the profiteer clear the boards for the folks still in office. DW has refurbished this nice tutorial on the marine life affected [2MB], which Chertoff says is nonScience. I suspect the executive Office of Science and Technology Policy missing emails [caveat 20MB filesize, full Waxman grid for all departments] are part of the strategizing for this antiscience administration. The fence project has sections in TX, but also the San Pedro segment on the Sonoran plateau by the army intell school campus in Huachuca, and the Barry M.Goldwater aerial bombardment practice range around Gila Bend.

    • bmaz says:

      Heh, you know, Barry was an active pilot until not long before his death. He was certified on about every kind of bomber in the Air Force fleet, including the B-1 Bomber and I truly believe he might have bombed the wall himself if he was alive.

      • JohnLopresti says:

        He lost the election because he wanted to explode a 100 megaton H bomb in the atmosphere in NV, and the people said no way any more. A formal description of the range is there (wide angle map); it extends several hundred miles so the practice can be at actual combat speeds; they have trained Chinese pilots there, too. Check out this outfit that has GIS contracts for the military in archeological site preservation and location by prediction software. They did a presentation for the Buffalo Soldier plaza on fort last year.

  10. Slothrop says:

    The extent of the lawlessness here is beginning to stun me and I’m a jaded old fart from way back.

    I’m just stunned.

    • bobschacht says:

      “U.S. banana companies and U.S. intelligence agencies and operatives have quite a history.”

      So, is that why our system of government is beginning to look a lot like a Banana Republic?

      Bob in HI

  11. kspena says:

    I’m always suspecious of bush when he’s first against something and then suddenly for it. The difference it seems is that he is made aware how to rip off another sector of the population. He was against a senior drug plan until he was made aware of how insurance companies and pharmacuticals could make a killing off the elderly. He didn’t care about housing until suddenly US was to become an ‘ownership society’ enabling investment bank deals to increase the number of buyers then rip them off . He was against fences until he was made aware of the govt. dollars that would flow to friends. What made this come to mind is some reading I did a while back, where Carlyle wanted bush to walk softly on some issue with the Saudis because Baker was talking the Saudis into building a fence along the long border with Iraq. It was for a hugh amount of money to Carlyle and Baker didn’t want to lose the contract. So I would add a motive of rip-off to the jocking about fences on the border.

  12. MadDog says:

    As I mentioned in a comment here back in January, Chertoff’s involvement (via January 29, 2005 NYT article) was real, and perhaps even crucial:

    Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.


    Mr. Chertoff’s division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.

    One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning…

    And more from that 2005 NYT article:

    …The officials said that when the agency asked about specific practices, Mr. Bybee responded with a second memorandum, which is still classified. They said it said many coercive practices were permissible if they met the narrow definition in the first memorandum.

    The officials said Mr. Chertoff was consulted on the second memorandum, but Ms. Healy of the White House said he had no role in it.

  13. Mary says:

    14 and others –
    So, don’t you think that contractor who was charged for assault and the like regarding the “detainee” who died in Afghanistan —- don’t you think he and his defense would be interested in the fact that the Crim Div of DOJ concurred that beatings and assaults and the like taking place out of the US and where the victim was not a US citizen, in the prosecution of the war on terror – are not covered by any criminal statutes?…..-Abuse.php

    6 – I really think if nothing else, now that this memo has been released someone needs to hammer the procedural point of the failure to designate person and grounds for classification bc that goes to the substantive point as well – that there was no applicable grounds – and maybe that would get a judge to at least require the memos be given to the court for ex parte review to see if they are in compliance with Exec Order requirements for them to be treated as classified. But maybe that’s a non-starter too for other reasons or maybe they’ve been down that path and failed already – it just seems to me the failure of this memo on its face to comply with classification requirments raises some issues that might not have been as clarified for the courts before. fwiw.

  14. MadDog says:

    Per EFF – Administration Asserts No Fourth Amendment for Domestic Military Operations:

    Today’s Washington Post reports on a newly released memo, “Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States” (March 14, 2003) , which which was declassified and released publicly yesterday. Balkinization has commentary on the very troubling opinion.

    While the newly released memo focuses on “asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators,” it contains a footnote referencing another Administration memo that caught our eye:

    … our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (emphasis added)

    I wanna see that Yoo “opinion” too! EFF sees this as tied into the purported “legal” underpinnings for the warrantless surveillance program (in Administration gobbledy-gook, the TSP).

  15. Mary says:

    This is interesting (and, speaking of other memos)- from AP via TPM

    For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.

    That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

    The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

    The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

    ”Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled ”Authority for Use of Military Force to Combat Terrorist Activities Within the United States.

    emph added

    So the whole of the telecom program originally operated under a non-program specific umbrella that the 4th amendment had no application to domestic military operations?!?!?!?!

    Um, despite Milligan which says – – – the 4th amendment has application during domestic military operations?


    • WilliamOckham says:

      Yep, and don’t forget to put this in the context of the recent revelation from Lichtblau:

      Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

      Did they not tell Mueller about that one?

      • bmaz says:

        And The Earl too – I wonder if the “no formal legal opinion” is because Yoo’s spew was not legitimate as a “formal legal opinion”? To the best of my knowledge, Yoo was a deputy assistant attorney general in the OLC. I have seen him described as “the Number Two at OLC” but I have never seen anything that formally conferred any official status upon him, nor anything that would formally designate him an “acting” official status; therefore I think it is a decent question as to under what authority and status was he able to undersign any of these documents. Perhaps there is such a basis, but I have seen no substantive evidence of such.

        • earlofhuntingdon says:

          Excellent point. Odds are you’re right. The presidential determination could not have relied on an invalid opinion; that frailty would have been quickly obvious. The determination plugged the legal hole caused by the invalidity of Yoo’s opinion, while apparently adopting its conclusions and reading of the law. We’re into serious legal circle jerk territory; it’s like those Renaissance paintings of the impossibly continuous stairway.

    • bmaz says:

      You guys fast. I was just going to put that up. Interesting the period of “16 months” is used, but later in the article it indicates that the only real refutation of the position occurs in January of 2006. I again repeat my assertion from 14 above, not one freaking thing should be done on FISA/Immunity until every bit of this crap is out and in the open.

    • Rayne says:

      Jeebus. I have goosebumps after reading that.

      The Fourth Amendment was specifically written in response to British military actions against colonists, and based in English law that preceded it. How do they simply upend hundreds of years of precedent?

      I guess you find some willing and evil morons who are illiterate about the law and its history, install them in high-level political office, and “make history”.

  16. AZ Matt says:

    So Jerkoff is the same type of lawyer as the rest of those creeps Bush hired, not a huge surprise especially after watching ineptly he run his department. Can we say Katrina!?

  17. earlofhuntingdon says:

    Marty Lederman, in the part of his post just before EW’s excerpt begins, points out that it is the AAG for OLC, not the office of OLC, that is authorized to issue these opinions.

    Yoo was not the AAG or acting AAG at the time this memo was signed and released by him. He had no authority to issue it. Its interpretations of US law were not valid or binding on the executive branch, though Haynes and others relied on it.

    The memo was kept secret, making it impossible to determine that invalidity or to knowingly adopt or ratify its conclusions. It’s not clear that Ashcroft or Comey saw it until Goldsmith learned of it, reviewed it, and ran it up the flag pole for Comey to see how many holes were in it.

    This looks a lot like the same pattern exposed in the Gonzales visit to Ashcroft’s hospital bedside. Making law and ”authorizing” behavior with a night stick.

    • Peterr says:

      Marty does open the possibility that Ashcroft may have delegated to Yoo the authority to issue this opinion — though that would have been highly, highly irregular, to say the least.

      • bmaz says:

        Marty does open the possibility that Ashcroft may have delegated to Yoo the authority to issue this opinion — though that would have been highly, highly irregular, to say the least.

        Yeah, well, the standard in every legal situation I have ever been in or seen is that any such designation or countersignature must be part of, or attached to, the document.

  18. Mary says:

    Maddog wins the First. *g*

    40 – I *think* my takeaway from that article was that there was no legal opinion endorsing “the program” early on, but there was a more generic legal opinion they were relying on, until a later demand for a more formal opinion.

    At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, …

    The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

    The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers.

    But boy oh boy, whatever they were spinning, it’s not exactly on all fours to claim that an opinion that “concluded that the Fourth Amendment had no application to domestic military operations” is the same as a conclusion that the N.S.A. can “intercept international communication of terror suspects without a standard court warrant”

    But I think that the Yoo opinion on the generic rights may have been all they had through the 2004 revisitation. Golly, no wonder the FISC was a bit “skeptical”

  19. Markinsanfran says:

    I am not a lawyer, but, “the sovereign”???? The Sovereign???

    Gee, and I always thought “the people” were the sovereign in the US. Hmmm.

  20. Mary says:

    43 – I think the 16 mos are because they know the general “war kills the 4th amendment even at home” opinion is referenced as being written in Oct 2001, and that reference is in a March 2003 memo and they are doing the math from there. I think when you combine with what was in the 3-30 Lichtblau opinion, though, what you get is that people wanted “something” and Yoo gave them something in late 2001 or early 2002, so the “something” he gave is likely the Oct 2001 opinion.

    But that “something” never really addressed “teh program” specifically, so it was revised in 2004 by Goldsmith (who probably was wondering a bit about overlooking the direct references to the 4th in the Milligan case) because it was “incomplete” and “somewhat shoddy, leaving out importatn case law on presidential powers.”

  21. Mary says:

    48 – did I make sense on that math? They aer saying “at least 16 mos” because all they know is that in the March 03opinion he references the Oct 01 opinion as being in effect, so for that time frame (10/01 to 03/03) it was definitely in effect.

    42 – the only thing is that the authority is delegable, so Bybee “might” have delegated that to Yoo, but if so, was even that delegation in effect since Bybee was technically gone on the Friday and the opinion didn’t go until Sat – was Whelan the only one with authority to delegate then?

    Even more interestingly, Lederman says Whelan knew nothing about it – so does that mean he knew nothing about it UNTIL it went out, but then couldn’t call it back, or does that mean he knew nothing about it (and all the other little secret memos referenced in it) period – the whole time he was acting?

    How can Congress even PRETEND there was good faith on the telecoms part if all they ever got was an opinion that said the military could ignore the 4th amendment domestically? (And doesn’t that put a different take, too, on the CIFA announcement?)

    • Peterr says:

      Even more interestingly, Lederman says Whelan knew nothing about it – so does that mean he knew nothing about it UNTIL it went out, but then couldn’t call it back, or does that mean he knew nothing about it (and all the other little secret memos referenced in it) period – the whole time he was acting?

      I’d guess the latter.

      The White House wanted this whole thing played very, very close to the vest, and I can see them saying “Until we get the new AAG/OLC in, let’s not ‘burden the temp’ with all this.”

  22. masaccio says:

    I found the hidden Youngstown Sheet reference:

    Thus, earlier in this current armed conflict against the al Qaeda terrorist network, we concluded that “[t]he power of the President is at its zenith under the Constitution when-the President is directing military operations of the armed forces.” Flanigan Memorandum at 3.

    Compare that with this description of Youngstown Sheet, which has become the accepted way to explain it:

    Jackson’s concurring opinion has garnered much attention from constitutional scholars and is the most frequently cited opinion in Youngstown Sheet & Tube. Jackson articulated an overarching theory of federal executive power in the United States. According to Jackson, there are three tiers of presidential authority. When a president acts in conjunction with Congress, Jackson wrote, executive power is at its zenith because the president may rely on his own authority plus that of the legislative branch.

    So, what do I win?

    • Rayne says:

      Which may explain a portion of the fearmongering they’ve done, like the strong arm tactics on NYT to halt the publication of the article on domestic spying.

      They must insinuate that the enemy is here on our turf in order to claim the war is being conducted here, too; this bolsters the President’s power as CinC.

      It also explains their fallback position of undermining Posse Comitatus, in the event they cannot continue to push the notion of war on our soil.

    • earlofhuntingdon says:

      Interesting reformulation of Youngstown by Yoo (or Addington or Chertoff).

      The Youngstown language itself refers to the “zenith” of presidential power as being when the president is exercising authority enumerated in the Constitution and enforcing congressional legislation to that end. It’s not when the president is acting as CinC.

      The president’s lawyers argue that “Zenith Powers” ™ apply by misdescribing his authority as if he were CinC of the US, not just its armed forces; by interpreting the CinC powers as conferring on the president limitless authority; and by interpreting the AUMF against Iraq as authorizing the president’s use of force any time in any theater for any purpose. (Because the GWOT is an endless war that spans the globe.)

      I think that’s a stretch.

      • masaccio says:

        Well, if I don’t get a prize for that one, how do you like my comment @90, with the “shootdown opinion” and the “I’m too classified for my shirt” reference?

  23. Mary says:

    52- ah, well, then the story will be that there was a delegation.

    Really and truly – impeachment needs to start with OLC and that means reaching back to Bybee and in connection with review of his actions at OLC pulling him off the bench.

    If Congress allows Bybee, Yoo and Bradbury to walk away with issuing secret laws (which in effect their opinions were) to the Executive Branch that allow the Executive Branch to disregard Congressional statutes with no consequence, they are throwing away the power of impeachment. If having an Executive branch underling stand up and pass out “ignore Congress and its laws” passes to the rest of the Executive branch doesn’t get impeachment – what does?

    A failure to dig in and start impeachment hearings on Bradbury that brings in Yoo and Bybee for testimony (no Exec privilege there) and goes after Bybee’s judicial appointment – means Congress really is a dead institution.

  24. Slothrop says:

    John Yoo is at his zenith when he’s making it up out of nothing on behalf of powermad no-nothings.

  25. Peterr says:

    Any way you look at it, something irregular is going on. Generals and admirals don’t accept memos from anybody’s deputy assistant without someone else with more pull saying “listen to this guy.” Someone wrote a cover memo, saying “Yoo speaks for the OLC and AG on this.” The first question is who, and the second question is why.

    At this point in the story, all eyes turn toward David Addington and Richard Cheney . . .

    My WAG: Cheney and Addington go to Bush, demanding that the OLC give the “right” advice to the DOD, and further suggesting that Yoo knows all about this and can make it happen. Bush agrees, and makes it clear to Ashcroft that Yoo should do this. Ashcroft salutes, and tells Yoo to write it up and send it off.

  26. earlofhuntingdon says:

    51 and 52, it’s not relevant who was AAG or acting AAG for the OLC, except that it wasn’t Yoo. It would be relevant if Ashcroft had authorized Yoo to issue this opinion. It seems more likely that Ashcroft, rather than authorizing him to issue particular work, would have simply authorized him as acting AAG for OLC. I think Marty wrote that he was unaware of any such delegation of authority.

    Earlier narratives of the musical chairs played at OLC around this time suggest that Ashcroft wasn’t following them closely, making it less likely he would have delegated authority to Yoo. At some point, Ashcroft learned of suspicions that Yoo was a Cheney mole and not loyal to Ashcroft or the DOJ, one reason he adamantly opposed naming Yoo head of OLC. But that may have been later.

  27. masaccio says:

    The torture memo is just full of good lines:

    Here, the application of these statutes to the conduct of interrogations of unlawful combatants would deprive the sovereign of a recognized prerogative. Historically, nations have been free to treat unlawful combatants as they wish, and in the United States this power has been vested in the President through the Commander-in-Chief Clause. As one commentator has explained, unlawful belligerents are “more often than not treated as war or national criminals liable to be treated at will by the captor. There are almost no regulatory safeguards with respect to them and the captor owes no obligation towards them.”

    All over the blogosphere people have been saying that Bush can torture these people to get his jollies. And Yoo is his procurer.

    • ProfessorFoland says:

      Historically, nations have been free to treat unlawful combatants as they wish, and in the United States this power has been vested in the President through the Commander-in-Chief Clause.

      Constitution of the United States, Article I, Section 8:

      The Congress shall have Power…

      To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

      To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

      A sharp reader, that Yoo…

      • masaccio says:

        Professor, nice catch, but Yoo relegates you to footnote 13:

        It might be thought that Congress could enact legislation that regulated the conduct of interrogations under its authority to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const art. I, § 8,
        cl. 14. The question whether Congress could use this power to regulate military commissions was identified and reserved by the Supreme Court. ExParte Quirin, 317 U.S. 1,29 (1942). Our Office has determined that Congress cannot exercise its ,authority to make rules for the Armed Forces to regulate military commissions. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General,Office of Legal Counsel, Re: Swift Justice Authorization Act at 7 (Apr. 8,2002).

  28. Mary says:

    Someone wrote a cover memo, saying “Yoo speaks for the OLC and AG on this.” The first question is who, and the second question is why.

    Haynes. Because Cheney/Rumsfeld wanted him to and as Gen. Counsel for the Pentagon he could.

    I think Ashcroft “claims” he was left out of a lot of the memos involving Yoo and OLC. But in any event, once Haynes had something from someone at OLC, and Yoo probably had valid delegation from Bybee (who was Haynes “joined at the hip” friend and who just got a nice shiney lifetime 9th circuit slot), then Haynes as the top legal gun for DoD could make them accept it. As a matter of fact, there is a lot of reporting, between the Mora story and later JAG armtwisting stories, about just how abusively he used his position as DoD Gen Counsel to make the military acquiesce in torture.

  29. Mary says:

    73 –

    51 and 52, it’s not relevant who was AAG or acting AAG for the OLC, except that it wasn’t Yoo. It would be relevant if Ashcroft had authorized Yoo to issue this opinion.

    It’s relevant in that there has been for many years a standing delegation from the AG to the head of the OLC to issue these opinions on behalf of DOJ. So the head of the OLC has the authority without having to get anything more from the AG and, not only that, the head of the OLC can further delegate this ability to issue out opinions without his signature.

    So the relevance was that Lederman thought Bybee was no longer acting head of OLC on the date the opinion was issued out and he knew that Whelan, who he thought WAS acting head, said he knew nothing about the opinion (so Whelan couldn’t have delegated to Yoo the authority to issue out the opinion since he knew nothing about the opinion).

    However, since Lederman has found out that Bybee was still the head of OLC, then Bybee could (and probably will say he did and probably did for that matter) delgate the ability to issue out the opinion to Yoo.

    • bmaz says:

      I understand the concept just fine; but if this is a “formal legal opinion”, should the authority for issuing either be implicit in the position of the signator and, if not, specified in the document? That is the standard I have always operated under….

    • earlofhuntingdon says:

      Agreed that Yoo wasn’t AAG or acting AAG, but that Bybee, as AAG, could have delegated authority to him and may have. Evidence of that would be useful, since Bybee was, in fact, around for another couple of weeks and this authority is among the most powerful in the DOJ.

      Yes, the articles about Haynes’ abuse of his authority, and his exceptionally close ties to Rumsfeld and to Cheney via Addington, suggest he thought he was part of the government-within-the-government run by Cheney, which was overriding normal chains of command and policy evaluation processes.

      We were starting a Middle Eastern war of choice just as the bureaucracy was learning that Bush rarely watched the store, that the normally vacuous job of VP had expanded to fill the power vacuum, and that only the voices of Cheney’s personal team counted. That is, there was no appeal to your boss, the president or normal policies or processes; Cheney got what he wanted or you lost your job.

  30. bmaz says:

    Someone wrote a cover memo, saying “Yoo speaks for the OLC and AG on this.” The first question is who, and the second question is why.

    Well, the third question ought to be where the hell is it?

  31. AZ Matt says:

    Such great lawyers in the Bush Administration
    Ashcroft = A**hole
    Yoo = Poo
    Addington = Assington
    Goodling = Gooperling
    Chertoff = Jerkoff
    Bybee = Boby
    Miers = Mired
    Gonzales = Gonorrhea

  32. Mary says:

    74 – what broke me the most of the MCA was that, no matter how bad the OLC opinions and authorizations, they were specific to the fact that the people had to actually be unlawful enemy combatants and if someone ever got to court and could show they were not (as so many were not) THEN the house of cards collapsed and they all knew it (that’s why they HAD to find everyone at GITMO to be an unlawful combatant at the CSRT hearings and try hard to keep someone like Kurnaz out of the court system – bc the war crimes and crimes in general were NOT covered by the opinions if someone was not an unlawful enemy combatant and that alone should have made everyone pause)

    But with the MCA, Yoo et al were able to get something that they couldn’t through their opinions. Congress created an irrebutable presumption that people who were taken to GITMO were unlawful enemy combatants if a CSRT had said they were – no matter how clearly wrong or how long it took for the CSRT.

    So Congress willingly went a huge step beyond the torture memos. It’s why I think Harry Reid/Carl Levin(yeah, I know his ‘vote’ on the MCA, but look at what he did on the DTA and how he refused to keep the MCA from coming out of committee) et al are just as slimey and blergh as John Yoo.

  33. Mary says:

    80 – So Philbin wrote an opinion saying that, “Congress cannot exercise its ,authority to make rules for the Armed Forces to regulate military commissions?”

    What a guy. What a concept.

  34. bmaz says:

    From Volokh via Phoenix Woman:

    Here is the quote:
    President ____ exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President ____ has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
    Who do you think wrote the passage above, and who was the President?

  35. Mary says:

    84 – I’ve seen it with separate delegations as well (as the third option) including standing delegations (like the one from the AG to the head of OLC).

    But the interesting thing there is that the Gonzales crew never seems to have been all that great at doing the actual paperwork for their delegations, so it could be interesting.

    If you dig back you may recall the delegation from Gonzales as AG to Sampson and Goodling and how it triggered an OLC opinion about how Gonazles (and that opinion also referred to the President for things that are specified as being in the President’s authority and that they are subject to similar rules on delegation) needed to meet certain standards with the delegations (like your reference to internal recognition of delegation within the document)

    But, back in the USAtty firings, first Bush piped up that he knew “nothing about” those firings (although he has the exclusive statutory right – a right that might not even BE delegable with appropriate delegation) and then later tried to claim (with almost no one challenging him on this) that there was no problem bc the USAttys served at Bush’s pleasure so they could be fired [!! BY HIM !!] for any reason.

    No one EVER anted up with the delegation from Bush to the DOJ crew that did the acutal firing, of THEIR right to fire and I have to think that either it was because a) it didn’t exist in writing at the time (my guess) or b) releasing it would clarify how badly Bush lied when he said he didn’t know anything about the firings.

    In any event, I think they should have pushed for that and said since it was needed as evidence of statutory compliance (i.e., that the USAttys actually had been fired by the President and not by someone like the AG who had no statutory authority to fire them) it couldn’t be subject to privilege.

    The problem is that no one seems to want to have the Sup Ct rule that the firings were all illegal and the new USAs are not actually properly the USAs because the old USAs were never validly removed. Wouldn’t that be “interesting”

    Still to ramble back to your point – I think there could be a separate delegtion as an option, but I have to wonder if anyone ever bothered to do their paperwork? And since Bybee’s in for the first torture memo, maybe he doesn’t mind being in for this one as well? And did he authorize Yoo and Philbin and Flanigan for all the other memos that are referenced too or did he sign all of them out himself?

    Lots of things Congress could ask if it were paying attention.

    • bmaz says:

      Yeah, exactly, and I was one of those whining obsessively about that on the AG/underlings authority. And that same logic applies here. Actually, I think, to some extent, it is even more important here. A formal legal opinion should stand on it’s four corners. Of what legal value is a court opinion never signed by the judge, but instead by his law clerk? Maybe I am unreasonably nit picking here, but the document should evidence it’s authority.

      • Peterr says:

        We’re talking about the crew that brought us “instant declassification,” right? Documenting the use of power has never been terribly important to these folks — only the use of it.

  36. masaccio says:

    Here’s another good one:

    As this Office has previously opined, unless “Congress by a clear and unequivocal statement declares otherwise” a criminal statute should not be construed to apply to the properly authorized acts of the military during armed conflict. Shoot Down Opinion, 18 Op. O.L.C. at 164…. For many years, our Office has also applied this canon in several highly classified contexts that cannot be discussed in this memorandum.

    So, here’s a new game: what are the “highly classified contexts”?

  37. Mary says:

    88 – “only the voices of Cheney’s personal team counted” Isn’t that the truth. I still remember how Bush only had the nerve to show up for the 9/11 commission after they told him he could have Cheney sit next to him. Think about that – a US President too flat out afraid of questions to show up without the VP to hold his hand. Amazing that Americans thought that was ok.

    86 – I’m going to say Yoo wrote it about Clinton, if only bc I know he did write some scathing stuff about Clinton abusing Exec power (he seemed to be incensed over logging roads in one piece IIRC) .

    • bmaz says:


      And either that or Cheney told him he couldn’t go without him; we know who wears the pant and who wears the skirt in that marriage. (Boy, that’s sexist isn’t it??)

  38. Mary says:

    90 – I’m still playing the old game of what was being shot down under the “Shoot Down Opinion” and how you “properly authorize” something that’s oh, say, maybe a war crime?

    But for the new game, I’m going to guess they were So American drug “war” contexts.

  39. radiofreewill says:

    By early Summer, imho, even Goopers with the most severely sloped foreheads and overhanging brows aren’t going to be able to miss the looming disaster staring them in the face: If the Republican Party doesn’t Condemn Bush and Support his Impeachment, then not only will the Dems win Unbeatable Majorities in the House and Senate, but the Republican Brand will likely be a relic consigned to the history books.

    Still, Goopers being Goopers, it will be interesting to see how many of them choose to Defy Darwin and burn-in over Loyalty to Bush the UE – too proud to deploy their emergency “I made a Mistake” chutes. And, so many of them are tandem jumping, too – Chertoff/Yoo, Addington/Cheney, Gonzo/Bush, Haynes/Rummy…My, my, what a Committed Group of Ideologues!

    That’s the ‘Leaders’ of the Republican Party – driving the Bus like Hell for the Cliffs of Insanity, and playing chicken with their own “too scared to show fear” cult followers!

    Can’t you just see it now – Bush standing on the gas pedal, screaming “Hold my Kool-Aide!” and Cheney riding “shotgun” on the Poor Little Goopers, pressed up against the windows, mouthing the words “We’re winning! Right?”

    • bmaz says:

      Kind of a Thelma and Louise moment?

      I was saying that the Republicans would be smart to go all in on impeachment a long time ago and blame everything on him. Think of what better shape their party would be in if they had. All these nasty loose ends could have been rolled and wrapped up into one deal and been done with. Could have probably salvaged a better outcome, even if not a great one, in 2006; and would be lined up to run as the serious party of principle in 2008. But lizards don’t change their brains. Goopers being Goopers as you say.

      Hey, I am told the 3G iPhone will hit the shelves in early May. I am getting antsy already….

    • BlueStateRedHead says:

      Interesting scenario, and probably snark, but let’s play it for real.

      Are you imagining that the Repubs. are going to initiate articles of impeachment in the House? House members of sufficient no. (forgot how many of them), who needs the RNC $$, or the ones that have not yet been embezzled? Whaaaaaaaaat? Yet, given the absence of money, is there more payout in going to individual donors as the guy/gal who by standing uo to the Pres. of the -30% approval rate has a greater electibility potential in a Dem. favoring election cycle. And more chance to get things done under a Dem majority than a Pres. favoring one?

      Doesn’t that basically throw McCain under the bus that you have Bush driving? If its a Thelma and Louise scenario, they are taking the pursuing cops with them over the cliff. Or the Bush bus is being thrown under the bus.

      the one thing that is real in all this, paradoxically, is the metaphor. That of the bus, and having Bushicle on it rather than under it. As per today’s NYT, it’s his ignorance of the $4.00 a gallon number that has disempowered him within his own admin. and rendered him invisible. That is, except in Europe, where (another irony) he now spends most of his time.

      Final irony, the $4.00 was, when he was asked about it was a misleading exaggeration, a fear-mongering one. Live by the lie/threat, die by it.

      That’s my fun for the day. Bye.

      • radiofreewill says:

        Good morning, BSRH!

        There’s some snark in there amongst the hyperbole, but my basic point is that the Republican Brand will rot out of existence if its members don’t act to restore its Destroyed-by-Bush Integrity.

        The Republicans have become synonomous with Hypocrisy. I circulate amongst a lot of them, and it’s almost scary to see the sheer number of heads in the sand. They’ve been trained, indoctrinated even, to believe a Black and White Ideology that ‘tells’ them they are So Superior to US that they can Never Make a Mistake.

        Now that they’ve gutted the Constitution, wiped-out the Economy, eliminated the Middle Class, and given each other Amnesty – they’ve arrived at cognitive dissonance: They can’t continue to Blame the Dems (nobody believes them anymore) and they can’t quite Be Responsible (they lost their Moral Compass a long time ago.)

        After a while, early Summer seems right to me, some of the Less Fearful Goopers will realize they’ve been taken by a Bunch of Sick and Twisted Cowboys, and Driven from behind by Boss Bush, instead of following Leader Bush, like they thought they were doing.

        The Goopers are paying the price, the same price throughout all history, for the Myth of their Superiority: Total Subscription to Reductionist Thinking pinned to Unquestionable Beliefs. All those “W the President” blind Loyalists are Little Chimpy Wannabes, at heart.

        In their Blindness, they’ve always depended on Bush, and Official Bush Henchpeople, to tell them what they were ’seeing’ and ‘What’s happening?’ because ‘Bush has special powers, and we can’t know what he knows.’

        I know it sounds crazy, but these are the kinds of ridiculousnesses that Nations wander into when they try to Make the World Fit Their Story, instead of Adapting to a World of Many Stories.

        Bush is just another historical blunderer who was Certain He Was Right, and the Goopers are just another historical example of Lemmings Who Believed Him Unquestioningly.

        Still, I think the Republican Brand can be saved if enough Gooper men and women come to their senses and Realize they Made a Mistake when they Slavishly Identified Themselves with Bush the UE – Wrongly Believing with All Their Venom that Bush was an Omnipotent King whose Word was Law, and who could, therefore, Never Lose.

  40. klynn says:

    Jack B @ Balkinization writes:

    Orin Kerr notes that John Yoo’s torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. (Oh, and they also decided a Presidential election using the flimsiest of legal reasoning. But I digress.)…

    There are things we might and should do to promote the restoration of proper constitutional government. The fact that the Constitution is in all of our hands, and not simply the hands of the Justices, is the reason why we have a living Constitution.

    (my bold)

    More here:…..s-and.html

    There are things we might and should do to promote the restoration of proper constitutional government.

    Let’s start the strategy plan for restoration of a proper constitutional government…

    Step One…

  41. emptywheel says:


    G’morning folks. I see that I’ve been gone twelve hours and apparently bmaz has given away not one but around SIX of our trashtalk hubcaps?

  42. klynn says:


    EW, just read this in the Asian Times and found it interesting. Nothing new that we don’t know about but interesting nonetheless.

    One March 25, Chinese-born engineer Chi Mak was sentenced to over 24 years in prison by a Californian court for plotting to obtain American naval submarine technology and illegally exporting it to China. The case offered a rare peek into the new multipolar world espionage system that is more complex than that of the bipolar Cold War-era.

    According to the US Central Intelligence Agency, Beijing recruits these agents by playing the “shared ancestry” card as an accompaniment to the usual monetary remuneration.

    US counter-espionage professionals contend that this is a unique style patented by China wherein the agents are relative amateurs such as Chinese students, businesspersons, visiting scientists as well as persons of Chinese heritage living in the US. Each individual may produce only a small iota of data, but a network of such persons could vacuum up an extensive amount of sensitive military and economic information.

    I think it is more than just China using the approach of “shared ancestry.”

  43. klynn says:

    From what I can tell, the foreign press is just picking up the story on the memo today. Along with many editorials on the US no longer being “Imperial Lite”…

    And O/T Philip Seymour Hoffman has been suggested to play “Rove” in Stone movie “W”…

  44. masaccio says:

    The NYT weighs in on the torture memo. The focus is on whether it was used by the military to justify the torture at Abu Ghraib and other places. Yoo denies it had that effect. Here is one line of defense from the bedwetters:

    David B. Rivkin, a former White House and Justice Department lawyer in the Reagan and first Bush administrations, said that the wording of the 2003 opinion might be “overly broad,” but that legal advisers like Mr. Yoo set out only what might be done legally, not what should be done.

    “In a post-Sept. 11 environment, the lawyers tried to give decision makers broad legal flexibility,” Mr. Rivkin said. “I don’t want to substitute my judgment for John Yoo’s as I sit in a comfortable office on a spring day in 2008.”

    Apparently the trauma of 9/11 had not dissipated 18 months later for this manly specimen.

    • emptywheel says:

      And Yoo–he’s not in a biased position at all. Nope.

      As for Rivkin, I wonder if he’s at all embarrassed that his unflinching support of BushCo’s excesses has brought him to this?

  45. masaccio says:

    More tortured logic from the torture memo:

    So, for example, a federal, non-military officer who is conducting interrogations in a foreign location, one that is not on a permanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction.

  46. Mary says:

    114 – No. Rivkin was rolling in the power and remains the cat with the cream. And his comment (112) about “what might be done legally, not what should be done” is pretty much crap, since none of it COULD legally be done (Hamdan anyone? Abu Ghraib convictions anyone? Torture Victims act cases that have had to rely on state secrets bc the acts were pretty clearly torture and torture conspiracies if the judges were allowed to get to the merits, etc.) Plus, the whole thing about a chain of command is the “what should be done” issues and Rumsfeld and Haynes made the “should be done” decisions with Yoo and Bybee and Philbin and Flanigan’s epistles in hand – – – Rivkin care to weigh in on the Haynes “should be done” decision? Or the OK given by the lawyers to burying Zubaydah alive, that seems to have been stopped by an FBI agent and not by the lawyers.

    Rivkin has a drawer full of armbands he’s ready to hand out.

    This is crap too:
    “’In a post-Sept. 11 environment, the lawyers tried to give decision makers broad legal flexibility,’ Mr. Rivkin said.”

    That happens in every war. That’s why we have law stemming from just about every war laying out boundaries and Yoo ignored those from WWII and the steel mill cases just as thoroughly as those from the Civil War and that upheld the Bill of Rights during wartimes. The Constitution WITH a functioing Bill of Righst is the Sunrise Salute nadir of our flexibility to one man’s rule. If you go for more flexible than that, you get something dijointed and ugly that will snap.

    And when Rivkin says:
    “‘I don’t want to substitute my judgment for John Yoo’s as I sit in a comfortable office on a spring day in 2008.’” then what I think he just said is that the press should quite going to him for his opinions, because he freakin doesn’t have one – he can’t disengage from his his lazybrain decliner state of mind to make it as far as a Point of View.

    Yoo is STILL arguing TODAY – from his freaking comfy offices – that the Sup Ct is wrong and that we have the right to torture and that he was right right right.

    Rivkin has known the Yoo argument that “torture to make someone say something bc they are being totured isn’t torture if the intent is to make them say things that you can make them say if the are being tortured” and has never been the least ashamed by it.

    He knows that there is no legally valid reason for calling legal rationale “secret” and covering up the opinions and particualrly not so now, years later. Yet from his comfy 2008 office he won’t condemn what is happening NOW, not then, NOW. He knows that continuing cover ups exist because of knowledge of criminal culpability and/or embarassment and that both of those are legally insufficient and invalid reasons to hold information back – yet he plays along. Interesting thing for those who have ever had to deal in document production with him (”I won’t sit back in my comfy office today and condemn the document destruction that my associate undertook yesterday at my behest”?)

    Rivkin is not only unembarassed, he will be one of the ones chortling over this whole situation years from now, as evidence of how “strong” he and his pals were and how no one could effectively circumvent them in any way – even when they were freezing and beating people to death, starting wars that bankruped a nation, engaging in MASSIVE felony violations and fibbing to the courts.

    And all the while the Dems scurry along in Bush’s wake, chipmunks without even an Alvin for leadership. Rivkin only sees it as a political matchup that he and his crew “won” and he’s damn proud of it.

    Not one god damned dead child from their vanity excesses will keep him up at night. This is the problem with everyone looking for the intellectual honesty in people like Rivkin and Comey and Goldsmith and Addington. They don’t have it. They were willing to do a lot of evil for political power and yet they all want love and admiration just like their hero, Bush, does. They don’t just want to do evil, as “safely” as possible, they want to be thanked for it. Contrast and compare Bush forcing the supplicants for the war to constantly reassure him that everyone will be grateful to him; with Comey, Goldsmith, et al covering up crimes and working on “better rewrites” for more ongoing crime, and wanting to make sure the press leaks guarantee that people will be grateful to them. And all the while they continue to see the system of justice as a place benefitted by putting a pal of theirs like Haynes on the 4th Circuit and benefitted by invoking state secrets to let someone like Ashcroft (and Thompson and Bush) walk away scott free from torture conspiracies on el-Masri and Arar, and benefitted by their lies lies lies lies lies about torture and surveillance. And they know they are right, because everyone does profer up their gratitude and everyone does quiver and quake in fear of the thought of actually bringing “their clients” to account.

    They really have pulled off the ultimate – not only have they made the nation and all its legislators and all its judges line up and dutifully recite that their clients will go free and unimpeded no matter what they did – – – but they’ve also managed to get the nation’s educational and corporte interests to reward them for their efforts and the nation’s press and people to laud them for them.

    It’s never about the shame and responsiblity – it’s all about the gratitude.

    Think P had a piece up the other day about O’Hanlon whining about how he doesn’t get as many interview requests as he used to – and that’s the only thing that embarasses these guys. As long as the NYT rushes to glom onto Rivkin’s every word he’s not embarassed, he’s revelling.

  47. klynn says:

    Here’s an article from the past leak of the Torture memo after the leak of the Abu Ghraib photos …with some dandy comments on Yoo……..zette.html

    I tend to agree that those who depict Yoo’s OLC “torture memo” as the but-for and proximate cause of the events at Abu Ghraib are likely overstating things. It’s possible, I suppose, that we might ultimately be able to find evidence establishing that sort of causal link, but I don’t see it now and I doubt we ever will.

    The Montreal Gazette article is worth linking to.

    It starts with this Yoo gem of a quote:

    He was held personally responsible for Abu Ghraib’s horrors: The disgusting behaviour of U.S. service personnel was seen as the bottom of the slippery slope down which Yoo had started America’s military sliding when he wrote the torture memo.

    “That was totally absurd,” he told me when we meet for lunch in a restaurant opposite his office at the Boalt School of Law in Berkeley, Calif. “Two bipartisan congressional reports and several military investigations showed that the Pentagon hadn’t even read the memo. Disgraceful behaviour of the kind which took place at Abu Ghraib had nothing to do with interrogation policy. Similar things have happened in practically every war. What was different was that this time they had cameras on their cellphones to photograph it. … But the idea that what went on in Abu Ghraib would never have happened without that memo is just silly.”

    (my bold)

    And that precisely the reason you DO NOT write an opinion like this Yoo! Just because it could happen does not mean you write an opinion stating it’s okay and legalize it.

  48. Mary says:

    119 – that’s good, “the Pentagon” hadn’t even read the memo.” You have the ultimate point klynn – the fact that it could happen doesn’t mean you call it legal as long as only “your people” are involved.

    On reflection, though, I think my 117 sounds too angry.

    I’m going to sign up for the next pilgrimage to David Rivkin’s comfortable office. Apparently it has these miraculous powers that do not exist even in Lourdes. Sit in that office, and you can find forgiveness in your heart for just about anything involving Executive branch torture and crime.

    If only Calgon could package it “Calgon, Take Yoo Away”

  49. klynn says:

    If only Calgon could package it “Calgon, Take Yoo Away”

    Mary, if I have not written before, your posts are wonderful and insightful with just the right amount of snark. Thank you!

  50. maryo2 says:

    Is there anything in the US Constitution that “requires” Congress to investigate wrong-doing?

    Does the Constitution have an anti-collusion between the 3 branches clause?

    At any point does it become illegal for Congress to not impeach at least one of these criminals?

  51. maryo2 says:

    For the “if not Yoo’s authority, then whose?” question, look at these players. I wonder if this event was a showdown like the Ashcroft hospital showdown.

    Vanity Fair –
    “On September 25, 2002, as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel.”…..ntPage=all

  52. jackie says:

    Ok, Dumb question. I’m confused, Why does it seem that everything was written/signed by Deputy Assistants?? Is it for CYA purposes?

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