The Holder Delay, the OLC Delay, the SJC Delay

I suggested last week that the Republicans have suddenly decided to challenge Eric Holder’s nomination in an attempt to postpone the time when AG Holder (if he is approved) would review the OLC opinions supporting warrantless wiretapping and torture.

It turns out that Patrick Leahy is also worried that BushCo are sitting on OLC opinions it has promised to the Senate Judiciary Committee (h/t Secrecy News).

Even in the final days of the Bush administration, the Department of Justice continues to stonewall congressional subpoenas for documents from the Office of Legal Counsel (OLC), according to the chairman of the Senate Judiciary Committee. Sen. Patrick Leahy (D-Vt.) on Friday underscored the Department’s continued obstruction and hit the Department on going back on its word to provide the Committee with copies of six documents related to a subpoena issued in October for OLC documents.

In a letter dated November 14, Justice Department officials said the Department was "prepared to make available for Committee staff review at the Department" two national security-related OLC opinions subpoenaed on October 21. The Department also wrote that it was "prepared to provide the Committee with copies of additional OLC memoranda on November 17, 2008." Upon receipt of the letter, followed by a verbal assurance on November 17 that the documents were being delivered to the Committee, Leahy postponed the return date of the subpoena, which was scheduled for November 18. To date, the Department has provided the Committee with copies of just two documents, one of which was not listed in the October 21 subpoena and was already widely available in the public domain. The remaining six documents have been made available at the Department only for staff review.

Here’s a list of the OLC opinions the Administration has been playing games with:

A. Memorandum for Alberto R. Gonzales, Counsel to the President, Re "Protected Persons" in Occupied Iraq (March 18,2004).

B. Any final OLC memorandum or written legal advice concerning applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49, including any March 19, 2004 memorandum, Re: Applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49.

C. Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense ("DoD"), from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (October, 2001).

D. Memorandum for Daniel Bryant, Assistant Attorney General, Office of Legislative Affairs, from John Yoo, Deputy Assistant Attorney General, OLC, Re: Applicability of 18 Us.e. §4001 (a) to Military Detention of United States Citizens (June 27, 2002).

E. Memorandum for William J. Haynes II, General Counsel, DaD, from Jay S. Bybee, Assistant Attorney General, OLC, Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002).

F. Any finalized memorandum from the Department of Justice, Re: Liability of interrogators under the Convention Against Torture and the Anti-Torture Act when a prisoner is not in U.S. custody.

G. Memorandum for John Yoo, Deputy Assistant Attorney General, OLC, from James C. Ho, Attorney-Advisor, OLC, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1,2002), or any other finalized memoranda or opinions provided by the OLC regarding the interpretation of Common Article 3 of the 1949 Geneva Convention relating to the treatment of prisoners of war.

H. Memorandum for Alberto Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, OLC, Re: Legality of the use of military commissions to try terrorists (Nov. 6,2001).

The administration has provided the last opinion, and one document the Committee didn’t ask for. But it won’t hand over documents A through G (I’m assuming they just claim there is nothing responsive to F), though it’ll let representatives of the committee look at them.

I haven’t read the Philbin opinion they turned over, but it’s clear why OLC hack John Elwood said, "The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)," as it must form the basis for a lot of the logic that created Gitmo.

We believe that if a particular use of military commissions to try offenses against the laws of war is constitutionally permissible within the United States, it follows a fortiori that such a use is permissible to deal with enemy belligerents overseas, where many constitutional protections would not apply in any event. 


We believe that, properly understood, the constitutional analysis in Quirin demonstrates that any person properly charged with a violation of the laws of·war, regardless of citizenship or membership in the armed forces (of this country or another power), may be tried by military commission. The critical point for constitutional analysis is that a person properly charged with an offense against the laws of war has no right to an indictment or trial by jury unoer Article III the Fifth and Sixth Amendments.


We note that the Supreme Court’s decision in Quirin also demonstrates that, at least if those charged before a military commission are being held within the territorial United States, they would be able to file a petition for habeas corpus to have an Article III court test whether their cases fell within the jurisdiction of a military commission – that is, whether the offenses charged properly "sets forth a violation of the law of war."


But cf Johnson v.Eisentrager, 339 U.S. 763, 787-90 (1950) (holding that the writ of habeas corpus is not available to aliens held outside United States territory)

I’m particularly fond of this logic: Congress has the right to declare war, therefore the President must be able to make the decision about war.

Part of the reason it is difficult to articulate any broadly applicable "test" for determining whether a war exists is that the courts have quite properly concluded that that question (and thus the triggering of the laws of war) is one for the political branches. Early in the Nation’s history the Supreme Court recognized that Congress has authority to acknowledge a state of war, and that its decision to do so, whether formally and fully or partially and by degrees, is not subject to judicial question.


We conclude that, even without any action by Congress to acknowledge a state of war, the President, in his constitutional role as Commander in Chief, and through his broad authority in the realm of foreign affairs, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), also has full authority to determine when the Nation has been thrust into a conflict that must be recognized as a war and treated under the laws of war.


By making the President Commander in Chief of the armed forces, the Constitution must be understood to grant him the full authorities required for him to effectively defend the Nation in the event of an armed attack. Necessarily included among those powers must be the ability to determine whether persons responsible for an attack should be subject to punishment under the laws of war.

Someday, long after this Administration is gone, we might want to think about returning the power to declare war to Congress again. But I suppose that would take Congress asserting that right.

I wonder. Is OLC refusing to turn these over to stall until the time when SCOTUS overrides each and every one of them?

37 replies
  1. SparklestheIguana says:

    I’m all for the three branches of government, but shit, does the legislative really have to assert itself the moment we get our guy in office?

    • al75 says:

      The legislative branch is crippled IMO due to the need for fund-raising, leaving most legislators in the job of raising cash, not legislating (note that one of the primary reasons given for supporting C. Kennedy as NY Senator is her likely fund-raising ability).

  2. AlbertFall says:

    Not worried about the legislative asserting itself with Dems in control.

    Stalling on OLC cannot last beyond January 20.

    Stable cleaning begins then.

  3. WilliamOckham says:

    I’m really, really, really not a lawyer, but as I skimmed through the military commissions opinion, I got a crazy idea. The Bushies claimed that the President has the right to set up military commissions to try violations of the laws of war, even if the person being tried was a U.S. citizen. They also argued that you give up your constitutional rights when you’re tried by a military commission. Hmmm…. violations of the Geneva Conventions are violations of the laws of war.

    Therefore, using their own logic, President Obama can set up military commissions to try the Bushies for their war crimes and he doesn’t have to give them any constitutional rights. I think Alberto Mora would make a good choice to lead the effort. Matthew Diaz could serve as chief prosecutor.

  4. scribe says:

    As I think I’ve told you, and will elaborate on further, the Rethugs’ drive to delay Holder (for whom I have no particular love) has several motivating factors:

    1. Delay so as to prevent effective investigation and prosecution of warrantless wiretapping offenses. An argument can be made that the worst offenses against the FISA law took place prior to the near-revolt of March 2004. As it appears from reading “anonymous”, whom many of us have been led to believe (by Isikoff this week) was Tamm, and from the other disclosures to date, there is little doubt remaining that prior to the March 2004 near-revolt and Gonzo’s Ashcroft hospital visit, a wholesale if not universal dragnet of all domestic communications was being illegally intercepted and, to some degree, analyzed by DoJ, NSA, and/or their contractor(s). Continuing this argument, it can be posited – though it is unclear how solid this is, legally speaking – that the 5-year statute of limitations on these offenses will begin to run out in March, 2009. Thus, if the Republicans can effect a delay of 6 weeks or so in having a new head at DoJ, there is a good chance they can either thwart any effective investigation and prosecution of those offenses, or make the investigation so circumscribed that it may fail out of insufficient time to make sure all the loose ends are tied up.

    2. The same statute of limitations argument can apply to non-fatal-result torture inflicted upon captives in US custody, and to the legal malpractice (arguably, depriving US taxpayers of honest services) perpetrated by Yoo and others in OLC in drafting their torture-enabling memoranda.

    3. A replay of the Zoe Baird confirmation fiasco would also appear to be in the interest of the bureaucracy as it will give them both control of the agenda and the opportunity to place pitfalls in the path of any new AG. Remember, Janet Reno came in on the Waco/Branch Davidian mess after the bureaucracy had been maundering along on its own momentum, progressively pushing toward the kind of resolution that came to pass. She came into the job and was immediately presented with a major crisis to deal with, and presented with a bunch of alternatives prepared by the bureaucracy and designed with the bureaucracy’s interests in mind. She didn’t so much decide as she did choose one from Column A and one from Column B. Of course, she and her president got the blame for all the dead bodies, whose deaths in turn were a generative force behind the domestic terrorist attack the next year in Oklahoma City. It has been argued that the bureaucracy was pushing the actors in that drama to do what they did – I take no sides on that but do note that it did serve the bureaucracy’s interests. We see the same knuckleheads popping up out of the woodwork now – that guy in Oregon who allegedly bombed a bank is of a piece with McVeigh’s crowd.

    4. Delay equals distraction, and comes from weakness. You’ll hear and see that time and again, and it plays right into one of the nastier streams of Republican propaganda – that everything will go to hell once the n*ggers get in charge. The Repuglicans will do everything they can to make a mess, so as to prove their own propaganda correct.

    How to address this delay problem?

    If I’m Obama, it goes like this.

    1. Let the Senate blather on.

    2. Before you go to the Capitol on January 20, have your secretary prepare a bunch of appointments as “acting [whatever the office name is]” for every cabinet secretary and official you think of who the Republicans might want to stymie, and even the ones they won’t.

    3. Sign them to be effective at 12:01 PM DC time on January 20.

    4. Hand them out to the secretaries.

    5. When you go to the Capitol, they go to their departments and take over. As “Acting”, they have at least 7 months before they have to be confirmed. The Republicans cannot force a filibuster that long and, if they try, I’m sure there will be at least one recess of the Senate between now and August in which they can all be recess appointed to their jobs.

    6. As to Holder, when he shows up at Justice (and if you are smart, Barack, you have a bunch of US Attorneys set up similarly at least in the home districts of obstructionist Senators), he both tears the lid off the warrantless wiretapping and torture memoranda and, as to a couple of the delaying-action Senators, has their new local US Attorneys distribute a snowstorm of grand jury subpoenas. IIRC, Specter has some campaign finance issues which never really got fully investigated, and some of these other folks have issues of their own. The thing is – don’t necessarily pick the most obnoxious of the bunch for this treatment. Pick some in the middle of the spectrum of obnoxious, so as to leave the really bad ones wondering what you will be doing to them, seeing as how Senator Milquetoast got dragged to a GJ and humiliated.

    7. If When the Republicans howl, remind them (citing their statements in the Congressional Record, date and page, and on Faux):

    a. “the President is entitled to have his nominees confirmed”;
    b. “up or down vote”;
    c. “elections have consequences”;
    d. “I reached out to you during the transition to work in a bipartisan manner on the deep, grave problems which confront the country. You chose to slap aside the hand I extended in friendship and a spirit of cooperation. How would you react if it were done to you?”

    8. Pick a screaming liberal to be the backup nominee for any challenged Cabinet department and let the Rethugs know that, if they happen to block any of them, the replacement will be far, far worse for the Rethugs.

    A successful strategy will have to use their own fear against them, in addition to the positive dimensions of friendly cooperation and bipartisanship.

    • readerOfTeaLeaves says:

      Clever. Particularly that bit about selecting backup nominees that would scare the sh*t out of the remaining, cornered GOPers.

      … A snowstorm of subpoenas… now there’s a lovely image to get that grape-eating FigLeafer soothingly out of my head. (Curses, twolf and EW; please add a ‘Warning!!’ to any future posted imagery!)

      Wm Ockham: elegant solution.

      • scribe says:

        I left out one more alternative to be implemented as part of “6″, the snowstorm of GJ subpoenas:

        don’t be shy about going after their family members, too.

        It seems to me that one of the statistically surest ways to become a cokehead is to be a Senator’s kid. They just seem to go together, like peanut butter and chocolate or something. Back in the 80s, there was a thing in NYC where every week the NY DA and the NY US Attorney would pick one day to be “Federal Day”. If you had the misfortune to get busted for dope on “Federal Day”, instead of getting the usual slap-on-the-wrist “Adjourned in Contemplation of Dismissal”, probation or fine, your dope offense was prosecuted in the federal system with its guarantee of hard time in a federal prison way, way far away. People fought it, said it was unconstitutional, said it was unfair, said all sorts of things. Government won.

        It didn’t end drugs in the City, but it scared the crap out of rational people – enough to get them to stay away from the dope.

    • phred says:

      scribe, great comment, I’m stilll a little fuzzy on how the statute of limitations thing works… Do criminal charges have to be filed prior to the date in question, or does the investigation need to commence prior to the date? It seems to me even with acting officials in place on inauguration day, that is mighty tight timing to get charges filed by March.

      Also, are there other possible charges that could be brought that do not have 5 year limits? Are there any that are unlimited? Any that are 10 years? Perhaps we need to press our Congresscritters to revisit various statutes of limitations to make sure that no sitting President can simply ride out the limitations over the course of the 8 years in office. In fact, had McCain won, we would have potentially needed 16 years and then some.

      It seems to me that we need to reconsider how we set up statutes of limitations for officeholders in the Executive Branch because it is clearly possible for them to prevent the DoJ from pursuing criminal activities of those officeholders. In such a scenario, the clock on statutes should not begin to tick until those officeholders (and one could argue their party) is out of power.

      Given the political manipulation of justice in this country (whether by the President using the DoJ as his personal protection racket or by the Speaker of the House refusing to use Constitutional authority to stop Executive crimes), there should be a way for the public to be able to replace elected officials over a reasonable number of election cycles and not forfeit the right to see former officeholders held to account in a criminal court.

    • acquarius74 says:

      Excellent strategy, scribe.

      There is no statute of limitation on murder. Many captives died as a result of torture in Baghram Prison, Afghanistan and at Abu Ghraib in Iraq and possibly at Camp Cropper in Iraq.

      If Holder must be AG, my vote for his “acting” deputies would be Bruce Fein as Acting Deputy for Investigation of Torture and Jonathan Turley as “acting” Deputy for Wiretap Investigation.

      How about Glenn Greenwald as back up nominee for AG?

  5. Citizen92 says:

    I’m admittedly pretty dense but…

    1/Obama is an attorney
    2/Obama will be the President
    3/Obama, as President, will be able to declassify whatever he wants
    4/OLC exists to advise the Executive
    5/OLC can operate independently of the AG

    What prevents Obama from naming an “acting” someone to get the review started post-haste? I was going to suggest that he could do it himself, but there are too many other problems out there for him to worry about.

      • Citizen92 says:

        Hey, I guess I could see a scenario where they take all of the papers, and nobody ‘remembers’ anything. But nobody could be that bold, right?

        I’m cynical enough to believe that they might just yank one of the memos on midnight, 1/20 and fly all the Gitmo detainees up to Washington in time for the Inaugural.

  6. MadDog says:

    Anyone wanna bet on whether the criminal defense attorneys in the DC environs are getting a lot of business in these waning hours of this Criminals Are Us Administration?

    • Leen says:

      Seems like business would have been good for lots of lawyers in the D.C. area for the last eight years. Busy Busy Busy

  7. JohnLopresti says:

    I wonder how long the judges would remain undisciplined sitting on the bench if early memos are too flaky to see the light of day. Also I would ask whether the sorts of material the current leadership in DoJ would permit mere elected US Senators to view but not copy, not to take notes, only on the premises, as if we did not have internet, is a hint the early obsequies had been more unbounded than we had imagined. Perhaps Holder could assent to simple withdrawal of those fervent justifications written in a confusing atmosphere; but the subsequent coverups border on a more politicized and acutely worrisome zone for all political appointees, as well as for career workers in the doj.

  8. LabDancer says:

    Gosh – I wonder if the Rs could be so desperate, so formalistic, so obstructionist, and of such bad will, that each office-holder in the current administration who obtained his or her office by presidential appointment confirmed by the Senate, will proceed to put up his or her own little version of the post-1945 “Hirohito’s Hold-outs,”

    many of whom went on for years in SE Asian jungles fighting the good fight, setting up and executing minor operations against ‘the enemy’, securing their positions, staying at their posts as long as humanly possible holding out for the day when the Emperor of the Sun would return triumphant, and honor and reward the fidelity of his isolated warriors?

    It would sure make a lot of sense out of the DOJ’s Liberty U Law-Aid and Regency U Law-Aid placement programs.

  9. maeme says:

    Definitely agree with scribe – Holder will be drilled on Mark Rich, Waco, Oklahoma Bombing & Jesse Trentadue who claims the FEds killed his brother and Holder is aware of coverup. It makes me sick to see how the Republicans are already lining up to derail initiatives for the common folk – I guess us Joe sixpacks (sorry about that) but what has me furious is Chuck Schumer’s role in the deregulation of the rating companies, i.e. Moody’s, Standard & Poor’s, and Fitch — are paid by the institutions (often investment banks). So you have homebuyers making 27,000.00 a year being approved to buy $425, 0000.00 homes because the rating companies were in on all the corruption and money to be made – the greed and fraud and they paid Chuckie Schumer’s “he was their go-to guy” to play. He claims to have learned from his mistakes. I’m sorry nobody is never ever held accountable. They don’t work for us.

  10. JohnLopresti says:

    Interinstitutional conflicts can get subtle, seems, check out the Renzi speech and debate shield amicus filing by majority and minority leaders in the lower chamber.

  11. radiofreewill says:

    Bush doesn’t want US to see that – with the help of Cheney, Addington, Gonzo, Haynes, Yoo, Bybee and many others – he and the Neocon Goopers pulled-off a Covert Coup d’Etat.

    Bush used a Pretext (911) to Militarily Elevate himself Above the Law, in Secret.

    Then, he kept everyone from seeing or challenging his ‘empowerment logic’ while continuing to operate as the Unitary Executive, granting his Stooges immunity from the Rule of Law for their Loyalty to his Neocon Ideology.

    He Secretly Surveilled the Citizens and Lied US into a War that Advanced his Neocon Agenda at the Expense of Our Blood and Treasure.

    He Tortured Other Human Beings. He colluded with the Bankers to Rob Our houses and retirement savings, and he even wanted to do the same with Our Social Security Trust, as well.

    Now, at the end of his eight years, Bush is in no hurry for the People to see that he and Cheney played “We Grabbed the Power and Kept You in the Dark, Now Let’s See You Take It Away!” in the Name of National Security, while Robbing US So Badly that they may have Stolen the American Dream for Generations of US to come.

    – The Military is going to say: What could we do, he’s the CIC?
    – The Congress is going to say: What could we do, he hid his apparatus from us?
    – The Courts are going to say: What could we do, he was smart enough to stay away from us?

    But, once We get those documents – then We’re going to Know.

    And then We’re going to find out who We really are…

    • Leen says:

      Follow the money during the Bush Cheney years

      Defense Industries made billions
      Oil Industry made billions
      Banking Industry just robbed the treasury of billions

      Mission Accomplished

  12. readerOfTeaLeaves says:

    FWIW, I’m not so certain that Chuckie Schumer’s able assistance for the ratings companies isn’t going to come back one way or another to haunt him. (And my meagre pennies are on the most improbable, least likely path back, as Lady Karma often seems to prefer the scenic route).

    I also think Lady Karma’s been taking the scenic route with Rove, but what I do believe ALL the Dems — but particularly Sen Leahy! — need to focus on is this: Why, oh why, are the former Bushies so flipped out about the Holder nomination…? What is it about Dept of JUSTICE hearings that they are trying to slow down? Huh?”

    I think that we need humorous comments from the Dem Senators, along the tones that Hon Barney Frank dished out back in late Sept regarding the sh*t-fit when the poor little House Republicans’ lower lips were quivering after their feelings were hurt regarding the Wall Street meltdown and Paulson’s panicking:

    ” But think about this: somebody hurt my feelings so I will punish the country… And there were twelve Republicans who were ready to stand up for the economic interest of America but not if anybody insulted them. I’ll make an offer: Give me those twelve people’s names and I will go talk uncharacteristically nicely to them and tell them what wonderful people they are, and maybe they’ll now think about the country.”

    Perhaps Sen Leahy and Sen Levin need to reassure the Sen GOPers that they’ll, “… talk uncharacteristically nicely to them and tell them what wonderful people they are, and maybe they’ll now think about the country which urgently needs a new AG.”

    Basically, the fact that Rove and the GOPers are trying to throw so much sand at the new AG appointment is kind of entertaining, IMHO. It shows what they’re most afraid of — a functioning DoJ that can investigate them. So I think that Leahy and Levin ought to end their soothing remarks with something along the lines of, ‘…After all, the GOP has nothing to be afraid of from a DoJ with investigative powers, and a new AG, now do they?’

    The Senate Dems just need to call the question, and I’m hoping for a few chuckles when they do it. Maybe the Dems on Judiciary need to hire a Daily Show writer part-time, but a little humorous exposure of the butt-covering delay tactic is definitely in order.

  13. Mary says:

    Just from a fast skim of a few of the parts of the Philbin opinion, man alive was the OLC and WH in a mess on this crap. Philbin spins (since we weren’t in the Afghan and Iraq “wars” yet) to try to explain how the laws of war would apply (so as to allow military commissions) if you have no formal war and he mostly relies on … common article three (I’m not kidding) to help his case, saying that since common article three covers even non-pows and it allows for the use of the laws of war, then it must be ok to use the laws of war when you have an act of belligerence, even if there is no declared war.

    Now keep in ming that a few months later, in January, Gonzales would be telling the President that the Geneva Conventions don’t apply to al Qaeda, whereas in Nov Philbin was arguing that since common article three applies to everyone, it formed the basis of allowing for military commissions. I guess there might be ways for them to sort that out, but it gets pretty darn interesting and certainly looks like a determination in Nov that common article three applies to everyone in “the conflict.”

    The other thing from a quick skim is that it doesn’t look like he ever bothers to try to define the group he is saying can be subject to all this summary military handling. No facts to speak of – which is pretty funny bc he talks about a case where jurisdiction gets one holding, then that holding is revised very soon thereafter bc … of facts, more and different facts making a difference in the decision. Go figure – what graduate of a recognized law school would think that.

    In any event, that means he goes around rambling on and on about “the terrorists” as if he had a list of names. At other times he talks about the terrorists in terms of the terrorists Who Carried Out The Attacks here in the US (and even discusses the fact that usually terrorists will be picked up bc of their participation in a completed or in the undertaking act of belligerene) and nowhere does he seem to ever really try to define who this group of “the terrorists” includes – except in a kind of weird, really HUGE scarey way. For some reason in discussing “the terrorists” as being subject to the laws of war as political actors, he makes the statement that Bin Laden called upon ALL Muslims to engage in jihad against the US and almost sounds as if he is trying to say that ALL Muslims are “the terrorists” He doesn’t say that, but that kind of weird referential stuff and a lack of any attempt at a definition cuts the heart out of his arguments. How do you argue something that your own cases say is very fact specific — with no facts?

    He relies on Quirin without noting the effect of the Geneva Convention ons Quirin, or the fact pattern which made Quirin a case sui generis and then he calls it dead wrong on the conflicts between Quirin and Milligan, saying that Milligan should basically be overruled, when in fact SCALIA of all people pretty much hammers out in his Hamdi dissent that if it were up to him, he might be overruling QUIRIN. He calls the US territorial control wrong – he just calls almost everything wrong except his assertions about the application of common article three (which the Sup Ct did buy into in Hamdan) but his determination that common article three would apply to conflict is then ignored by Gonzales in his Jan opinion to Bush, bc the same OLC was opining that the Geneva Conventions weren’t going to apply. mish meet mash

    OT – but in the foggo case, apparently there is a showdown going on about what parts of Foggo’s grand jury testimony will be released.…

    But when the government asked the court to unseal grand jury testimony containing secret evidence used in the case, Foggo’s lawyers objected.

    • MadDog says:

      One underlying thing that struck me in reading/skimming Philbin’s piece was the fact that the Administration by November 2001 had already determined that it would not, it dared not, bring these terrorists/non-state actors/unlawful combatants to justice in courts.

      The Bush/Cheney Administration (with emphasis on Cheney, but not at all excluding the Una-frog-bomber Junya) had:

      Multiple Choice:

      1. Zero confidence/trust/respect for the US Court system?
      2. Wanted “back-alley” gloves-off payback revenge (everybody see Cheney’s hand here)?
      3. Believed that by off-shoring detainment, torture, and kangaroo trials, they would keep their own butts from US prosecution?

      I personally believe it’s “All of the Above”.

      And the last point is that everybody knew exactly what the folks in charge wanted, so that OLC opinions like Philbin’s were merely the back-asswards tailoring of “the law” to suit their masters’ demands.

      • MadDog says:

        3. Believed that by off-shoring detainment, torture, and kangaroo trials, they would keep their own butts from US prosecution?

        Or put another way, if Bush/Cheney believed that waterboarding was not torture, and that they had the CinC legal authority to use this and other torture techniques, then they had no reason not to bring the detainees to the US and torture them here.

        And of course, logic says that Bush/Cheney did not believe waterboarding and other torture techniques were legal, hence they knew that doing so in the US would subject them to prosecution.

    • emptywheel says:

      Ah, thanks for that, Mary.

      That’s pretty much the parallel of what I felt like was happening on the larger issue of presidential ability to declare war.

      It looks like it is higher comedy than even I hoped (not).

  14. Mary says:

    21 – well, after just a skum, I’m not going to be more definitive, but I’m glad someone invented that word, “interesting.”

  15. Mary says:

    Per Philbin

    There is, of course, no treaty to which the United States is a party that applies by its terms to the current conflict with a terrorist organization and that would subject terrorists to the laws of war- or as it is now more commonly referred to in international law, the “laws of armed conflict.”

    [going on to explain why he thinks those laws can be applied to establish Military Commissions]

    To begin with, the major conventions that set out international law standards governing international conflicts between states are not limited by the formal concept of “war.” Rather, each of the four Geneva Conventions of 1949,for example, applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” [cites omitted]
    Thus, even in the context of hostilities between nations, it is the existence of a set of facts – hostilities that amount to armed conflict – that triggers application of the provisions of the
    Geneva Conventions. It is true that the requirements in the Geneva Conventions apply by their terms solely to conflicts between states. Thus, those conventions are not triggered by a conflict solely with terrorists. But that does not mean that there are not principles of the laws of armed conflict that apply in other scenarios. The complete set of restrictions in those conventions are not the only sources of the laws of armed conflict that restrict the conduct of armed hostilities under international law.29 For example, common article 3 of the Geneva Conventions was expressly designed to provide a form of safety net to establish minimal standards of humanitarian conduct that would govern in certain conflicts not covered by the Conventions. Thus, while the Geneva Conventions were designed to address international armed conflict, common article 3 sets out some basic standards of humanitarian conduct that the parties are bound to apply “[i]n the case of armed conflict not of an international character” occurring within the territory of a Party. E.g. Geneva Convention Relative
    to the Protection o/ctvilianPersons in Time-o/War, art. 3, 6 U.S.T. at 3518.

    The standards of common article 3, moreover, are reflective of a minimal standard of conduct that some view as required in all armed conflicts.

    the United States has supported statements in the United Nations of minimal standards, reflective of the principles in common article 3, that must be observed ”by all governmental and other authorities responsible for action in armed conflict.” [cites omitted] This statement acknowledges that the laws of armed conflict can be applied to a broad range of situations involving non-state actors, for it addresses not only the actions of governments, but also “other authorities” responsible for “action in armed conflict.” The United States, in supporting this resolution, indicated that it “constituted a reaffirmation of existing international law.”

    emph added

    Interesting to square with the later OLC positions that common article 3 doesn’t apply

    • radiofreewill says:

      I think you’ve probably highlighted the issue that Goldsmith said concerned ‘them all’ – liability for War Crimes.

      If Common Article 3 applies – and it almost certainly does – then Bush, with his Policy of Torture, created a Torture Regime loaded with a Lot of Complicit Actors.

      The only way out of that mess was for Gonzo to declare that Common Article 3 didn’t apply – So They Could Keep the Torture Going – but be able to say that they ‘believed it was legal’ at the time.

      Except, Goldsmith dis-abused them of the notion that ‘believing’ it wasn’t Torture because CA3 didn’t apply is the same as saying it’s not Murder if the victim isn’t a Citizen.

      So, everyone wanted Cover after that – which led to the Ex Post Facto Immunities in the DTA and MCA. Except Bush and Gonzo – they chose to Hide Their Torture Authorizations under the umbrella of the UE, instead.

      So, Bush and Gonzo kept pushing-on, kept coming up with ever-trickier schemes to Keep On Torturing and Avoid Accountability, including the Enhanced Interrogation/Combo Techniques Memo that Gonzo carried around in his briefcase with him – because Comey told him he’d one day be ashamed if ‘that memo’ ever came to light.

      So, Goldsmith attempted to lead the mis-led Bush Followers away from the Practices Ordered by the Monster Bush – back towards the position that Philbin would have supported – while Bush, himself, Secretly moved even deeper into the Dark Side and ‘Enhanced’ the Torture Program by Combining Techniques of Brutalization on Other Human Beings.

      I can see why Comey, Philbin and Goldsmith stood against Bush and Gonzo on Torture.

  16. Mary says:

    23 – Or maybe – Knew that the President had his highest powers if he treated the situation as a “war” conveying upon him “war powers” vs a criminal act. Philbin is kinda weak from what I saw on the crimes v. war front, apparently saying that since it was a Really Big crime, by Bin Laden who called on all Muslims to jihad, that meant it must be war, not a crime.

    Under the precedents outlined above, the terrorist acts are plainly sufficient to warrant application ofthe laws of war. The attacks fit exactly the terms used in the cases above (which, as explained below, also closely parallel standards applied in international sources addressing the laws of armed conflict). The terrorists have engaged in a “system of attacks upon” the United States, that are part of a “hostile demonstration against the government [and people] in general.” 13 Op. Att’y Gen. at 472. Usama bin Laden has made it abundantly clear that he has called Muslims worldwide to a ‘jihad against the U.S. government, because the U.S. government is unjust, criminal and tyrannical.” Osama Bin Laden v. The U.S.: Edicts and Statements, CNN Interview with Osama bin Laden March 1997, available at…..icts.html. See also Jihad Against Jews and Crusaders, World Islamic Front Statement, Feb. 23, 1998, available at…..-fatwa.htm (”The ruling to kill the Americans and their allies – civilians and military – is an individual duty for every Muslim who can do it in any country in which it is possible to do it …. We – with God’s help
    – call on every Muslim who believes in God and wishes to be rewarded to comply with God’s order .. to kill the Americans and plunder their money wherever and whenever they find it.”).

    Not only is the way he works in “all Muslims” when he has never bothered to define “the terrorists” who can be brought before military commissions kind of oogy, but the quote Bin Laden quote, which goes on to focus on plundering American money kind of undercuts his elsewhere argument, that the motive for the attacks must have been political rather than for personal gain in order to declare it an act of war. And how he differentiates a religious based attack from a political based attack I’m not sure bc I didn’t see him discuss it anywhere. I guess he’s saying that attacks on Gays are acts of war against the US maybe? Or not. I really don’t know why OLC wouldn’t have reached out to JAG in preparing this memo, makes no real sense to exclude them on such an area of expertise.

    But in any event, to meander back to what you mentioned, they wanted Bush to have as much power as possible and your other three, all as an all of the above.

  17. emptywheel says:

    And if you assume the remaining opinions are just this contradictory, than it’s pretty easy to argue even the opinions are void.

    Incidentally, in a post I’ve meant to do, OLC also says they didn’t have to hand over these unclassified opinions bc the admin did not rely on the legal reasoning within them.

    So on one hand they’re argument (a la Goldsmith) that if an OLC opinion says it’s okay, you can’t be prosecuted.

    On the other hand, they’re withholding the opinions based on the claim that BushCo didn’t rely on the reasoning within the argument.

    scribe’s right–we need to be talking an extension of SoL. BC this stuff is pretty easy to shred, once you get ahold of it.

    • bmaz says:

      It is a stiff hurdle/burden to clear, but it is possible to make out a case for tolling the SOLs based upon mischief by the defendant, and thus extend the time for charging. Now I have no idea how plausible it is, but I could at least see an argument that the SOL is tolled while the defendants are, in fact, the ones running the government refusing to investigate and prosecute (thereby obstructing justice). Equitably, they should not be able to profit from their own malfeasance. It is not nearly so simple though.

  18. JohnLopresti says:

    Technical delay postponed downloading the fas copies of the memos from olc here, but their contents seem historically worthwhile, and seem to point to further utility balancing their early views with the several additional memos the accompanying letter from Senator Leahy describes as not yet public; the way he worded it almost sounded like some committee people probably viewed some of the as yet publically unavailable set of memos. I think Philbin’s coverage of the wide range of topics now in retrospect fairly redundant of what national security experts have examined, but much more supportive of executive ability to do pretty much as it saw fit with any captures, much in the same tenor as the several months later issued Bybee memo. I thought some of Philbin’s referencing inapposite, and daringly unfootnoted, though maybe the mention of the Yoo materials, as well as the unseen memos Leahy references in his objections might have supplied more specificity with respect to precedents. Philbin seems to be reviewing what would appear otherwise in footnotes in the body of his ample review.

  19. JohnLopresti says:

    Sen. Leahy saying Holder hearing one week timeshift relates to his committee’s plan to have an opportunity to consider the nominees in aggregate, and the slowness of making more selections at other DoJ posts than AG, plus some other corporate counsel musings.

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