Iraq War Memos Released: Working Thread

McClatchy’s Marisa Taylor has gotten a hold of three more Yoo memos–and one Jack Goldsmith memo–that reveal the Administration’s thinking on the Iraq War.

They are:

October 23, 2002: Bush has authority to declare war against Iraq because his Daddy did

November 8, 2002: UN 1441 doesn’t prevent Bush from going to war outside the terms of 1441

December 7, 2002: If Scooter Libby claims the Iraqis lied on their WMD declaration, Bush can declare war

March 18, 2004: If the US ships Iraqis outside of Iraq, then they can torture them [Jack Goldsmith’s opinion]

I’m most interested in the December 2002 memo, because it seems to have shaped the roll-out of propaganda directed against Iraq–up to and including John Bolton’s use of the Niger claim in a State Department release on Iraq’s declaration. Basically, they seem to have gotten the legal opinion, then tailored their propagana to the terms of the legal opinion.

But I guarantee you, Mary is going to have some things to say about the Goldsmith memo, which she has been keeping an eye out for for some time.

Consider this a working thread.

Update: Come to think of it, the October 23, 2002 opinion is pretty funky. As it points out, it came not long after Congress approved the Iraq War resolution.

You asked us to render an opinion based on the constitutional and other legal authorities that would exist in the absence of new authorization from either Congress or the United Nations ("U.N .") Security Council. We note that on October 16, 2002, the President signed into law the Authorization for Use of MiIitary Force Against Iraq Resolution of 2002, HJ. Res. 114, Pub. L No. 107-243,116 Stat. 1498 (2oo2),which authorizes the President to use force against Iraq to enforce relevant U.N. Security Council resolutions regarding Iraq and to defend the national security of the United States from the threat posed by Iraq. We have not considered here the legal effect of that resolution. As this memorandum makes clear, even prior to the adoption HJ. Res. 114 the President had sufficient constitutional and statutory authority to use force against Iraq. We also note that negotiations are ongoing in the U.N. Security Council on a
new resolution regarding Iraq, but we do not address any of the proposed terms here.

It’s as if, at each stage of the process, Bush got Yoo to say he could do what he wanted regardless of the machinations in Congress and the UN, so he could claim he didn’t need that authorization. (Shades of Daddy, here.) And, of course, they eventually probably relied on that authority when they went to war without a new resolution.

I wonder whether Colin Powell knew about these opinions?

Update: November 8 opinion link updated (I think).

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  1. SaltinWound says:

    I’m not happy about Obama’s seeming reluctance to get into any of this. My sense so far is that he won’t be pursuing war crimes charges or even following the evidence where it leads. But would any of the Democratic candidates have been willing to go that far? My sense is that none of them would have and, on some level, I didn’t have a real choice in the election. But I realize I’m just vamping while we wait for Mary.

    • NelsonAlgren says:

      Dennis would have. I also bet John Edwards would have floated it had his campaign lasted and he not engaged in other activities. His advisers obviously understood the “playing to the base” thing(or at least seemed to).

    • chetnolian says:

      May a non-US observer comment?

      I suspect Obama is getting quite a lot of advice from lots of people, including those who did not and would never have approved of what was done in their name, but who care as you do about the USA, that he needs to tread carefully. There’s not a few Governments (including the British dammit) with whom Obama wishes to work on good terms and who will not be best pleased if events in the USA leave them swinging gently in the wind. I’m enjoying the thrill of this chase as much as anyone, but there are lots of reasons, some of them even good ones, why simply washing all the linen in public might be dangerous.

      • SaltinWound says:

        I understand your concern about stirring things up. What I’m concerned about–if there is not a full investigation, with criminal penalties–is a replay of Iran-Contra, where the same players come back into power.

        • quake says:

          Agree completely. After Watergate, and then Iran Contra they were let off, and after 15-20yrs came back more virulent than ever.

          It’s like taking only half your anti-biotics and then throwing them away before the bugs are killed off. You just create a new class of ever more virulent bugs.

          This time there should be (but probably won’t be) a real settling of accounts.

      • THATanonymous says:

        I agree with Saltinwound. While I’m about as gray as you can get about most issues, some do matter. Black or white, do or die, ad nauseum. That tree does make a sound, even if no one is standing there at the moment. The current events have a history BECAUSE these things were never properly dealt with before and before that and before that. Historical events are largely examples of the black/white sort. That is, they stand as stark reminders of what you must or must not do. Bush didn’t make history, he just followed a well worn path. What we need is to MAKE history and deal with these guys, political, financial, etc., in a way will take them at least several decades to decide to make another run at it. To do that requires some really explosive kinds of events. And that is not necessarily a metaphor.
        Assuming you are from the sunny isles of Britannia, what have you got to lose besides one security camera for each inhabitant thereof? You’ll be years digging splinters out of a dark hole in your body anyway. Shorter: just what would it take for you to agree to see laundry flapping in the breeze?

      • skdadl says:

        chetnolian, I share Ta @ 84’s opinion on these things, precisely because I’m from another country where too much is still being swept under carpets.

        It bothers me, eg, that the FBI agents who went to GTMO knew how to react professionally, legally, and morally better than did agents and representatives of my own country who got slotted into the same process. We have had bits and pieces of the public debate we should have had over those scandals here, but not enough. Why are you worried about seeing some of those people called to account in Britain? I sure would like to think that some of our arrogants were thinking of lawyering up, although they are definitely minnows in the larger scheme of things.

      • Palli says:

        An aside conversation with chetnolian: You see, as Americans we have lived with this gut retching anger and streams of water behind our eyes since November 2000 while this group of mean and thoughtless people defiled the idea of America…”the land that never was but must be”. America was just getting old enough to look at itself with the maturity required to assess the progress with a sincere sense of accomplishment but also the honesty to see the distance ahead. Instead they slid us back into the worst of our past behaviors nationalism, corruption, torture (slavery without work) and flagrant disregard for the other. They, Cheney, Bush, Rumsfeld, Addington, Woo and all the others can not go off to their gated communities after this damage. Accountings must be made if we are to feel exocised enough to get back to the work of growing an American community.
        The thinkers on this blog are plotting how to fully live again as Americans. I come here to marvel. I do a different work for tomorrow but my comfort to do this is dependent on their rational minds.

  2. klynn says:

    March 9th to March 18th 2004, a busy week for the Bush Admin…what was the intersection irt wiretapping and then the Goldsmith opinion? There has to be one…

  3. phred says:

    My memory isn’t so good, but didn’t Goldsmith put a fair amount of effort into defending BushCo torture by insisting they had been well intentioned? IIRC (and I may not) it sounded to me at the time, that Goldsmith didn’t approve of torture, but was sympathetic to all the frightened little Bushies that thought torture was necessary. Now it appears that Goldsmith’s efforts were far more self-serving than we knew at the time.

    • bmaz says:

      Now it appears that Goldsmith’s efforts were far more self-serving than we knew at the time.

      Shocking. Simply shocking. Who could have ever guessed this??

  4. emptywheel says:

    Updated the post with this:

    Come to think of it, the October 23, 2002 opinion is pretty funky. As it points out, it came not long after Congress approved the Iraq War resolution.

    You asked us to render om opinion based on the constitutional and other legal authorities that would exist in the absence of new authorization from either Congress or the United Nations (”U.N .”) Security Council. We note that on October 16, 2002, the President signed into law the Authorization for Use of MiIitary Force Against Iraq Resolution of 2002, HJ. Res. 114, Pub. L No. 107-243,116 Stat. 1498 (2oo2),which authorizes the President to use force against Iraq to enforce relevant U.N. Security Council resolutions regarding Iraq and to defend the national security of the United States from the threat posed by Iraq. We have not considered here the legal effect of that resolution. As this memorandum makes clear, even prior to the adoption HJ. Res. 114 the President had sufficient constitutional and statutory authority to use force against Iraq. We also note that negotiations are ongoing in the U.N. Security Council on a new resolution regarding Iraq, but we do not address any of the proposed terms here.

    It’s as if, at each stage of the process, Bush got Yoo to say he could do what he wanted regardless of More…the machinations in Congress and the UN, so he could claim he didn’t need that authorization. (Shades of Daddy, here.) And, of course, they eventually probably relied on that authority when they went to war without a new resolution.

    I wonder whether Colin Powell knew about these opinions?

  5. JThomason says:

    In how convoluted a fashion has constitutional interpretation evolved when no one blinks at the suggestion that the President has the inherent authority to pursue war?

    • phred says:

      The problem here goes way beyond Constitutional interpretation… My favorite sentence in the Taylor piece that EW cites is this:

      In one lengthy section, Yoo expounds on the meaning of the word “and” and concludes that it should not be construed as a conjunction.

      Grammar no longer holds any meaning for these people, how can one possibly expect a fair and honest interpretation of far more complicated constructions like paragraphs and whole documents? This is willful blatant dishonesty all gussied up in pseudo-intellectual b.s. to provide a fig-leaf for wantonly criminal conduct.

  6. JThomason says:

    I suppose from a business model point of view “war on terror” is floated as sales puffery and has no substantive meaning. Caveat emptor I guess. So much for the American Civil Religion, enter the heathens.

  7. Mary says:

    Argh – I’m having to get deep in real work for awhile and probably won’t be able to read until tonight.

    If the Goldsmith memo is along the lines of the draft, it tried to create a little more nuance than shipping Iraqi’s out of Iraq to torture them. What he tried to do was make an assumption that there was some real way to know who, in Iraq, was a member of “al-Qaeda” (there were so many of those when we invaded, weren’t there?) The GCs required that people who are citizens of countries that are parties to the GCs, who find themselves in areas of conflict, are “protected persons” and required to be treated as same while in the occupied territories (this includes not torturing them and not shipping them out of country)

    Again, if its the same and IIRC, he basically tried to argue that members of al-Qaeda (operating under his assumption that someone had the definitive fraternity membership list) weren’t really like citizens of the countries they were… citizens of, and instead were stateless and so not covered. And besides, if you shipped them out of “occupied territory” (and hey, shipping them to other territory that the occupier occupies might be not even shipping them out of occupied territory *insert reference to dislocating his shoulder while patting self on back for this one*)despite the fact that such shipment would be a war crime if done to a protected person who is a citizen of a signatory, then maybe the GCs just didn’t apply.

    Great guy that Goldsmith – when someone went to him wanting paper cover for torture, he was a ready and willing whore. I’m so glad Kagan got him his slot at Harvard. Maybe she’ll hire him on to help her as a deputy solicitor gen too?

    • drational says:

      Mary:
      “The GCs required that people who are citizens of countries that are parties to the GCs, who find themselves in areas of conflict, are “protected persons” and required to be treated as same while in the occupied territories (this includes not torturing them and not shipping them out of country)”

      Actually, the GC protects people who “find themselves” in the hands of the occupier, not in the country. The latter is the sophistry Goldsmith attempted to use- that “al Qaeda” are deliberately in Iraq to cause damage so they can’t “find themselves” there. But they did not intend to get caught, so they indeed “find themselves” in the hands of the occupier…..

      “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

  8. plunger says:

    In conclusion, should Iraq make false statements or omissions in its paragraph declaration, Iraq would necessarily be in “further material breach of [its] obligations.” False statements or omissions alone are enough to constitute “further material breach” as that term is defined in paragraph. An additional showing of noncompliance and noncooperation with the resolution is not required, because the word “and” in paragraph 4 has a disjunctive, rather than a conjunctive, meaning.

    If we say they’re false, we bomb.

  9. maryo2 says:

    December 2002 memo pages 2-3 –
    It is well established that the word “and” is capable of more than one possible construction. In some contexts,
    “and” conveys a conjunctive meaning, under which all enumerated conditions must be satisfied before a particular result is achieved. In other contexts, however, “and” is used disjunctively, in which case anyone
    of among two or more conditions by itself would be sufficient to trigger a particular result.

    Yoo used the word “or” in the sentence to explain that ‘and’ can mean ‘or.’ What a maroon. But footnote 3 goes on to say ’screw international interpretation and good faith, courts in America talk like dumbasses so therefore this nonsense is sensical.’

    Footnote 4 says “See, e.g. Bruce v. First Fed. Savings and Loan Ass’n of Conroe, Inc., 837 F.2d 712, 715 (5th Cir. 1988)”. That appeal says that acts A,B,C,D and E must occur for the plaintiff to win. E did not happen, so the appeal is denied. WTF was Yoo thinking!?!

    • tejanarusa says:

      Hey, I’m jumping in here without reviewing the rest of the comments, so I apologize if this has been mentioned, but – putting on my grammar maven hat:

      In other contexts, however, “and” is used disjunctively, in which case anyone of among two or more conditions by itself would be sufficient to trigger a particular result

      [Italics mine]

      Yoo just destroyed any credibility for a grammar/word usage argument by misusing the word “anyone”. It doesn’t mean the same thing as “any one” [of], as he apparently thinks it does.
      Which, for me, if I were his boss or a judge, would have meant I’d have quit reading right there and made him do it completely over.
      Sigh. REading Yoo has always hurt my brain. This minor (not to a real grammar maven!) quibble is about the best I can do. I bow to the rest of you, and will return to reading.

  10. lizard says:

    This stuff is much less about authority than it is about discretion. It seems at every juncture, they say that the executive can make the decision, yet never any guidance on how decisions should/must be made. The ego of this man never ceases to amaze me.

  11. WilliamOckham says:

    For obvious reasons, I’m fascinated by the March 18, 2004 memo. It was always unclear whether or not Goldsmith ever issued a final opinion. I’ll have to look closely to examine possible differences. For the moment, I’m struck by Goldsmith’s foonote about the definition in Article 4 describing protected persons.

    As we noted, Article 4 extends “protected person” status to all “… those who, at a given moment and in any manner whatsoever, find themselves … in the hands of [an] … Occupying Power of which they are not nationals.” The prepositional phrase “at a given moment and in any manner whatsoever” modifies “find themselves” and therefore has no application or relevance to persons who do not “find themselves” in the hands of an Occupying Power. Thus, the meaning of “at a given moment and in any manner whatsoever” does not inform or expand, but instead depends upon and is limited by, “find themselves.” Accordingly, we do not believe this prepositional phrase provides meaningful guidance in choosing between the broad and narrow readings of “find themselves”.

    Um, right. He’s saying that adding the phrase “in any manner whatsoever” doesn’t broaden the meaning of a sentence. In some ways, that’s more pernicious than Yoo’s sophistry over ‘and’.

    • klynn says:

      Okay, this is probably a dumb question…I find it interesting that this memo exists in terms of defining Article 4 as “applied to two war fronts.” The specific entry on the War with al Qaeda, which clarifies a front including the US itself, leads me to think we were carrying out torture here on US soil. With this falling during the week of March 9-18th, 2004, I am wondering how/if the possibility of torture on our own soil might tie into the wiretapping Comey hospital scene? I know Marcy suggests to look at the issues separately, but with the urgency on wiretapping illegality, I wonder if there was a further urgency that tied the illegal wiretapping to torture on our own soil.

      I know, crazy.

  12. Rayne says:

    If memory serves, the Iraqi WMD declaration was “re-routed” and “received” by the U.S. FIRST in Nov 2002, before it was received by the U.N.; the declaration had been lightened by a few pages before it made its way to the U.N.

    Getting very fuzzy 6-7 years on, but I think I recall hearing that several hundred pages went AWOL.

    Anybody else recall this?

      • kspena says:

        I have the same memory. Not only did they have it, but wouldn’t share it with others at UN. I have heard several times over the years that only Iraq told the truth on WMD…

        • Rayne says:

          Yeah, the more I think about it, I think at one point I heard that pages related to American or American-friendly suppliers who furnished materials to Iraq had been removed, but who knows if that wasn’t a cover story, too?

          There were other things moving around in the shadows at the same time, in the window between October and December — like this bit:

          December 3, 2002: The Central Intelligence Agency announces that
          Bush has the authority to order the assassination of United States citizens
          at any time if the citizen is considered an “enemy combatant”, and that
          the determination of who is an “enemy combatant” is solely Bush’s decision.

          See Chris Floyd’s Sacred Terror, dd. 08DEC2005.

          Certainly makes me wonder if there was not only torture but an execution assassination that occurred somewhere in the mix…

  13. R.H. Green says:

    Regarding the funkiness of the Oct 23, 2002 memo, (and forgoing speculation as to what an “om” opinion is): This memo is in response to an inquiry as to the state of law outside of the AUMF and any recent Secuity Council resolutions. This suggests that the opinion may have beenwritten before the AUMF and perhaps expected UN resolutions, and not being a scholar of such things, I can only wonder what effect the passage of the AUMF (and/or UN resolutions) would have had on the provided memo. It also may have excluded these matters on grounds of inconvenience (hint to any such interested scholars).

  14. R.H. Green says:

    Regarding the Goldsmith memo: It’s hard to see how he could threaten to resign a week earlier over the wiretapping issue, but go ahead and write this disgusting intellectual obscenity that says torture would be ok, as long as its hidden (that is, out of our territory of responsibility). Repugnent.

    • phred says:

      As Mary has reminded us regularly, the rebellion over wiretapping appears to have been motivated by the possibility that Goldsmith, Comey, et al. might find themselves getting prosecuted, given the increasing hostility of the FISC to the misconduct of BushCo. It was never about any high-minded opposition to spying willy nilly on Americans, they didn’t have a problem with that until they found that it might lead to their legal jeopardy. In that light, there is no inconsistency between the rebellion over wiretapping occurring simultaneously with their full court (pun intended) press for torture.

      • R.H. Green says:

        Yes, I know. In hindsight, I was emoting. I was so upset, I went for a walk. You see, what got my goat was considering EW’s list of memoes, the Oct 23 caught my attention. without actually reading the thing, but merely responding to her reference, I wondered about the motive the the thing. Wne the United States came into being, this experiment in self-governance by the people had little precedent, We have a constitution (a distillation of the best of the then current thinking), subsequent legislation, Supreme Court decisions, and these Executive Branch declarations to guide all future foriegn and domestic policies of the republic. These are not therefore matters of idle intrest; they matter. That such cretins as Yoo and the ilk that use him should have their hands of the levers of power (and all that it commits the rest of us to)is infuriating, (and depressing when you consider the fate of the experiment). But I digress. What Yoo was doing was to inform his master what his legal status would be without the AUMF, and any future UN resolutions, with regard to waging a war against Iraq. My initial comment had to do with wondering why the memo would leave out the AUMF, when it had been passed; my mind reeled at the possibilities. By the time I got to the Goldsmith memo, my blood was boiling. Parenthetically, let me add that I wasn’t pointing out the inconsistancy you cited, but (needlessly I guess) the outrageous piety of claiming to stand on “principle” on the wiretapping in the same week as… well, you read it. A belated glace at the dictionary informs that the word is spelled, “repugnant”; there I get to say it again.

        • phred says:

          Please do continue to emote : ) I misunderstood your comment (obviously), but entirely share your anger and frustration. The thing I find galling about Goldsmith and Comey is that they have been painted as good guys because of the hospital showdown. More recently Goldsmith has been spending a lot of effort defending the indefensible. And now we see from the timing of the new Goldsmith memo with the showdown, that he was even more craven than we might have imagined. Just when you think your opinion of BushCo can’t sink any lower… They really are overachievers at under(handed)achievement ; )

          • Loo Hoo. says:

            A sad time for America. We’ll be strong again soon. Just having been in magnificent Panama, there are lots of American workers there. Still lots of construction there.

    • lllphd says:

      i agree, fully and completely.

      but i’ve suspected for a while, wrt these folks and difi and jello jay, that there was considerable hedging along the lines of (1) the cia has been doing this covertly for years, so we just want to make sure we’re covered legally, (2) the usual “24″ ticking bomb arguments, and (3) 9/11 changed everything/different kind of war, blablabla.

      i know i know, these are ridiculous and sick, but it really WAS different then. but just not in the way they’re referencing.

  15. klynn says:

    The “Protected Persons double talk” interpretations in the Goldsmith memo still lead me to think we were torturing within the US.

    The dissection of “find themselves” leads me to further ask, “Did we torture within the US?”

    • WilliamOckham says:

      We were torturing people in the U.S., including Jose Padilla and al-Marri, but this memo was the cover for having rendered someone out of Iraq to Afghanistan for torture. I obsessed over that case here.

      • klynn says:

        My question was not stated clearly. I guess I am trying to link to a specific case/concern that would have fallen during the March 9 – 19, 2004 (or earlier/slightly later). I realize Padilla and al-Marri were tortured in the US. I know at the end of February Hambali was arrested by Thai authorities and then Madrid happened on the 11th… I should have clarified an event intersecting the two specifically in the time period of DOJ panic-wiretapping/ comfort-torture opinions.

        The timing of the issues (wiretapping and torture) during this week is nagging and I wonder if there was a common thread to tug, other than timing and the parsing of language in documents on both issues, to tie together.

    • lllphd says:

      hell yeah; that’s been known for years, in many jails and prisons, it’s been revealed. and i am sure many if not all those immigrants who were deported suffered terribly.

      but i wonder who they had in mind?

    • Hmmm says:

      The dissection of “find themselves” leads me to further ask, “Did we torture within the US?”

      It is strange. It leads me to wonder whether the detainees may have been tortured while under the influence of psychoactive/coercive drugs, i.e. was the OLC trying to find a way to argue that the detainees were not in any state to recognize anything at all in a rather desperate straw-grasping attempt to evade the plain language “find themselves”?

  16. Ugh6 says:

    Re: “and” = “or” — the IRS recently litigated more than half a dozen cases, arguing that “and” really meant “or” for purposes of some telephone excise tax. I think they were something like 1 and 6 at the district court level and 0-fer in appellate courts.

  17. BayStateLibrul says:

    What troubles me is, are we ever going to put the Bush administration
    on trial for the OLC’s rubber-fucking-stamping-interpretations

    The BU Law Review article by Obama’s newly appointed DOJ expert, presents the abuses…

    “The lesson we should draw from the Bush administration is not that we should dramatically alter our understanding of longstanding presidential authorities. Rather, it is the urgent need for more effective safeguards and checks from both within and without the executive branch to preclude any future recurrence of the Bush administration’s appalling abuses.”

    What drives me mad is there is no remedy. The lesson learned is to put
    these culprits behind bars… that’s the most effective way to deal with
    these high crimes…

  18. JTMinIA says:

    A quick check of John Yoo’s website reveals that about half of his recent publications have co-authors. As they appear in print, his name is linked with the co-author using the word “or.” If we use a 50/50 split, then this means that one-quarter of his claimed publications are actually by someone else, given that “and” can sometimes mean “or.”

    I don’t know how things work in law schools, but in Liberal Arts if you stuff your vita by 25% and get caught, you get fired. (NB. in that last sentence, the word “and” [as in “and get caught] was meant as a conjunction.)

  19. JTMinIA says:

    Crap. The “or” in the second sentence is supposed to be “and” (or else it really isn’t very funny).

  20. maryo2 says:

    Invasion of Iraq was March 20, 2003.
    Hospital showdown was Wednesday night, March 10 through Monday, March 15, 2004.
    Goldsmith’s memo is dated March 18, 2004.

    Speculation — This sounds like somebody was captured in Iraq and tortured (in the US??), and their confession was used to justify a wiretap that had become problematic to efforts to get another 90 day extension of the program. Some sort of agreement was reached with those threatening to resign that allowed the wiretapping program to continue as long as future torture did not occur in the US.

    • klynn says:

      CIA was a part of the capture of Hambali and we denied he was in our custody for a long time.

      His wife carried a fake passport from Spain…Then the Madrid bombing happens on the 11th…

      Just an interesting part of the timeline.

  21. pdaly says:

    I found Waxman’s March 2005 letter to Shays which fleshes out your point.

    On December 19, 2002, the State Department issued a fact sheet entitled “Illustrative Examples of Omissions from the Iraqi Declaration to the United Nations Security Council.” (9) The fact sheet listed eight key areas in which the Bush Administration found fault with Iraq’s weapons declaration to the United Nations on December 7, 2002. Under the heading “Nuclear Weapons,” the fact sheet stated:

    The Declaration ignores efforts to procure uranium from Niger.
    Why is the Iraqi regime hiding their uranium procurement?

    It was later discovered that this claim was based on fabricated documents. (10) In addition, both State Department intelligence officials and CIA officials reported that they had rejected the claim as unreliable. (11) As a result, it was unclear who within the State Department was involved in preparing the fact sheet.

    Per Yoo, 2002: “And” means “Or,” and thus the War…

    Fortunately, Waxman demonstrates not only that Bolton pushed the false claims of an Iraq –Niger uranium purchase (which State would have known at the time to be false), but also that Bolton and his pals covered up his misdeeds to prying eyes by labeling as ‘sensitive but unclassified’ the details of how the statement made it into the fact sheet.

    On July 21, 2003, I wrote to Secretary of State Colin Powell, asking for an explanation of the role of John Bolton, Under Secretary of State for Arms Control and International Security Affairs, in creating the document. (12) On September 25, 2003, the State Department responded with a definitive denial: “Under Secretary of State for Arms Control and International Security Affairs, John R. Bolton, did not play a role in the creation of this document.” (13)

    Fortunately, Waxman demonstrates that the State Department LIED TO CONGRESS by insisting Bolton had nothing to do with the inclusion of the Iraq-Niger uranium claim in the State Department’s fact sheet used in the run up to the 2003 WH Iraq war of choice.

    • pdaly says:

      “Your point” referring to ew’s paragraph:

      I’m most interested in the December 2002 memo, because it seems to have shaped the roll-out of propaganda directed against Iraq–up to and including John Bolton’s use of the Niger claim in a State Department release on Iraq’s declaration. Basically, they seem to have gotten the legal opinion, then tailored their propagana to the terms of the legal opinion.

  22. pdaly says:

    I was wondering if the fabricated Iraq-Niger forgeries precipitated calls to Yoo to write his memo, or whether the fake “purchase agreement” followed it to make the fake case more airtight.

  23. maryo2 says:

    This discussion reminds me of a statement on The al-Haramain Dates thread yesterday, comment# 19 by EW:
    “Bush will go to jail for violating attorney-client privilege, and unfairly abrogating the rights of lawyer who we have no reason to believe did anything wrong besides doing their job.”

  24. WilliamOckham says:

    This newly-released memo dated March 18, 2004 is a completely different memo from the previously leaked “draft” memo that was dated March 19, 2004. It covers much of the same ground, but it is a completely different document. This raises all sorts of questions.

    • WilliamOckham says:

      The first question is obvious. The March 19, 2004 ‘draft’ was addressed like this:

      Memo 28. March 19, 2004
      To: William H. Taft IV, General Counsel, Department of State, William J.
      Haynes II, General Counsel, Department of Defense, John Bellinger,
      Legal Adviser for National Security, Scott Muller, General Counsel,
      Central Intelligence Agency
      Distributed to Alberto R. Gonzales, Counsel to the President
      From: Jack Goldsmith III, Assistant Attorney General, Office of Legal Counsel
      Re: Draft of an opinion concerning the meaning of Article 49 of the
      Fourth Geneva Convention as it applies in occupied Iraq.

      The earlier opinion was sent only to Alberto Gonzales. Was Goldsmith pulling a fast one on Taft, et. al.? This sounds suspiciously like what the Haynes pulled on Mora with respect to the Gitmo torture working group.

      • phred says:

        Nice catch WO, I think you are on to something there. One version that’s hidden, another for more public consumption.

      • WilliamOckham says:

        Continuing this conversation with myself…

        I get it now. The March 18, 2004 memo redefines who is a ‘protected person’ to exclude a category of people best described as ‘people we don’t like’. The March 19, 2004 memo says we can transfer some ‘protected persons’ out of Iraq even though Article 49 says we can’t.

        • phred says:

          Just so you don’t feel like you’re talking to yourself…

          So March 19th (we can transfer protected persons in spite of Article 49) goes to Taft et al., while redefining who is a protected person only goes to Alberto? Do you have any insight into why Goldsmith used different recipients for what appear to be related topics?

        • drational says:

          I am listening since @23.
          The redefinition is to exclude “people we already sent out of Iraq and tortured, in violation of the GC”.

          I think this is the get out of jail free card issued in case John Kerry beat Bush in 2004.

        • drational says:

          Re-reading Dana Priest from October 2004, I can put together the 2 March 2004 memos:

          They have exported a ton of “al Qaeda” when Goldsmith comes on board in October 2003. He immediately sees a problem with GC and Iraqi citizens and stops this:

          The origin of the [March 19, 2004] Justice Department memo is directly related to the only publicly acknowledged ghost detainee, Hiwa Abdul Rahman Rashul, nicknamed “Triple X” by CIA and military officials.

          Rashul, a suspected [Iraqi Citizen] member of the Iraqi Al-Ansar terrorist group, was captured by Kurdish soldiers in June or July of 2003 and turned over to the CIA, which whisked him to Afghanistan for interrogation.

          GC is violated here, since he unequivocally is a protected person.

          In October [2003, White House counsel Alberto R. Gonzales asked the Office of Legal Counsel to write an opinion on “protected persons” in Iraq and rule on the status of Rashul, according to another U.S. government official involved in the deliberations.

          This must be the “urgent issue” and stack of legal opinions Philbin brought to Goldsmith in Goldsmiths first week on the job at OLC that Goldsmith writes about in his book. There must have been underling unrest about a prior opinion on this same subject (rendition) that Gonzo

          Goldsmith, then head of the office, ruled that Rashul was a “protected person” under the Fourth Geneva Convention and therefore had to be brought back to Iraq, several intelligence and defense officials said.

          The CIA was not happy with the decision, according to two intelligence officials. It promptly brought Rashul back and suspended any other transfers out of the country.

          They are not happy, probably because they now have a bunch of potential War Crimes indictments….

          In the one-page October 2003 interim ruling that directed Rashul’s return, Goldsmith also created a new category of persons in Iraq whom he said did not qualify for protection under the Geneva Conventions. They are non-Iraqis who are not members of the former Baath Party and who went to Iraq after the invasion.

          After Goldsmith’s ruling, the CIA and Gonzales asked the Office of Legal Counsel for a more complete legal opinion on “protected persons” in Iraq and on the legality of transferring people out of Iraq for interrogation. “That case started the CIA yammering to Justice to get a better memo,” said one intelligence officer familiar with the interagency discussion.

          And so March 18 rolls around and Gonzales gets to review the free pass. On March 19th the CIA gets the memo they seek; all the non-Iraqis that are still at black sites getting tortured are not protected because of word games…..

        • skdadl says:

          Here I’ve been working carefully through everyone’s details, only to find that your posts mean I have to go back and read over again smarter. Fascinating, though.

          Like drational @ 31, I was wondering more about what Goldsmith meant by “find themselves” than I was about the prepositional phrases. That comment @ 31 made my head feel better, a lot better.

          Yoo on conjunctions is simply absurd. For one thing, there are different classes of conjunctions (he’s talking about co-ordinating conjunctions — and, but, or, nor, for, so, yet — and he should say so), and then it’s nonsense to say that “and” ever functions as a disjunctive.

  25. THATanonymous says:

    While I seriously appreciate the details that are uncovered/discussed here, details only have significance (no matter what the subject) if the context is equally present while the details are being unearthed and digested.

    One of the more important bits of context here is that we are talking about a man (and his ‘administration’), a ‘President’, who was installed in his position, not elected. Not being the president in fact, could he have ever done anything illegal at all, since he is/was not the president and therefore he could only have been getting people to cooperate with him voluntarily? Didn’t we/you all accede to an illegality when we didn’t revolt in December 2000. These discussions of his (or his minons) actions are predicated on his/their legal or illegal use of presidential authority. After all, AFAIK, he never shot anyone or robbed anyone himself. No authority, no crime? Or, put the other way around, isn’t everything he did illegal, being predicated on a primary fraud?

    When (ha!) will we ever see a proper (legally founded) judicial review of the events of Nov-Dec 2000?

    If the three most important considerations in opening a store are location, location and location, then certainly in matters of politics they must be context, context and context. Open a thread about the context of this man’s days in ‘public service’ and you’ll have to get a bigger server to handle all the traffic.

    Really like detail, LOVE context.

    • lllphd says:

      well, i certainly agree that the s’election (Stolen Election) of 2000 was the first crime. most folks feel 9/11 everything changed; to my mind, everything changed 12/12/2000.

      that said, it would be nice if your complaints could find some remedy in the law, but when congress certified the votes and bush was sworn in, that was it.

      of course, as per your emphasis on context, his entire administration has followed suite, as they say. predictable from the inception.

      • THATanonymous says:

        Sorry, Judicial malpractice with aforethought (Supreme Court halos not withstanding) or Congressional complicity in a crime do not convey any rights at all. And all the fruits derived therefrom must be forfeit and, if possible, returned to their rightful owners.

        • lllphd says:

          hm. in sentiment, i agree. or want to. but seems to me the constitution is pretty clear about the process of certifying the election and then clearing the way for the swearing in. it even gives direction for what to do if there is a question, which happened both in 2000 and 2004. but constitutionally, these objections were not supported by congress, and the certification went forward.

          like i said, that’s that. nothing in there about how the congress deals with an illegitimacy unless it is advanced within the described process. a flaw, certainly, and one that can be corrected.

          seems to me there’s a parallel here to the seating of burris, however imperfect, but i don’t think i’m the first to suggest it. the constitution is clear in both cases, and the process has moved along accordingly. we all know the illegitimacy of both situations – blago’s and bush’s, and burris’s (oh my) – but that does not alter the rules.

          but we can alter those rules, legislatively, at least, for future eventualities.

          all that said, i swear, i wish you were right. i’ve even had this fantasy so frequently over the past 8 years, i cannot begin to tell you. but, it is what it is.

          • THATanonymous says:

            Sorry, just caught your post. See mine at 142. The law only works when we all (or most of us) agree to be bound by it. That hardly applies here. Notice that I didn’t say “doesn’t convey legal cover”, I said “doesn’t convey rights”. The distinction is important because when the people at the top ignore the law, shred the law and piss on the pieces, THEY have tossed LEGAL remedies out the window. What matters is what’s right, in the best sense of that idea. TJ (IIRC) said it, or my parphrase of it: …blood must be spilled regularly to nourish the tree of democracy. The ones breaking the law only use it as cover — in their minds they can use it to limit YOU, not them.

            • lllphd says:

              i agree with all that. again, no one would love to see these guys hang more than i would. but there is no law that will hang them for the fact (as we both see it) that bush was NEVER legitimately elected.

              (think about that; the republicans have not honestly won a general election in twenty years now; and likely won’t before 2012, if they survive that long. that’s intense.)

              i would love to see rove and all the guys that connell wold have fingered had he lived fry. i would love to see that entire agenda exposed. but, as it is, we only have the legal remedy at this point of voting them out of office.

              i know, this presents not just a sick irony but a potentially dangerous trend; our election process has been seriously damaged, and there has not been enough reporting or outrcry, so how can we hope for legislation to correct this? we work harder. that’s all i know to tell you.

              seems we’re on the same page in principle, but we can’t get around the limits of the law. but that’s not our intent, and that’s what makes us different from them.

              • THATanonymous says:

                I guess I didn’t make myself clear enough. The situation as I see it is that some parts of American society (or parts standing just outside of it) have declared that the rule of law is not equal (bi-directional) and that IS how it is supposed to be. Since these parts are not bluffing little schoolyard wannabe bullies, but very powerful people and organizations, they are able to dish out punishment, suppress opinions and news and otherwise get their way without resort to the law. For them, the law is not a compass to acceptable communal behavior, it is a tool — a sledgehammer in fact. Never mind that what they see as a sledgehammer might be perceived by others as a fine clockwork mechanism. They are only interested in deadweight heft and results, which they regularly get. So that’s part one: Big scary powerful guys flaunt the law, ignore the law or otherwise used it as a weapon instead of a social interface tool.

                Part two: It’s been this way in the past (not always, but lots of the time), but it has usually been much harder to spot what these big bad wolves are up to, or to see just who ‘they’ are. That’s old news. When most people couldn’t see the plan and the players, they didn’t have to decide much beyond day to day stuff, for after all, if you can’t find the source of the pain, how can you make intelligent decisions what to do about it? That was actually calming in its own way because, for the most part, people were relieved of the responsibility to decide what parts of their lives they would risk and how they would take on risk in order to (hopefully) have actual control of all of their lives.

                Part three: Now we know. The law is not the law. It is a weapon or it is ignored, but it is not intended to apply to all nor does it. Who writes the law after all? This places the big scary burden of personal decision making right in front of people, where they can no longer ignore it. Many of those people have become quite used to not having to decide more than a few important things in their whole lives. That is no longer possible because a decision to look away, look the other way, whine that it’s all ‘too much to confront’ is no longer a comfortable option. That is now clearly as important a decision as whether or not to become a soldier, a parent, etc. Looking away can no longer be seen as a responsible option. No one else will save you. No one else can make decisions about your life that are better than the worst decisions you can make. THAT is scary as hell to most people, and you may be one of them. It’s understandable to be frightened of contemplating actions that were once ‘unthinkable’. But it is no longer a defensible position to not think those thoughts. You can’t take ‘violating the law’ off the table simply because it is the ‘law’. The law is not the law. Seeing the context is the only way to see your way around the ‘problem’ of violating the ‘law’.

                In sum: the issue is not how ‘they’ interpret the law to tie your hands. It is: why do (will) you go along with it? There are options. What the financial and other crises have now shown is that ALL current options are fraught with danger. There are no safe paths. There never were, but some could squint ‘just so’ and sort of convince themselves that there were. The only reason I am spelling out what you already know in your heart is to help you make it more conscious and intentional that this is how things really are. For it is only with intelligence and fully concentrated awareness on the part of lots of people that any real breakthroughs in the way this world works are likely to happen. Change is what you say it is when it changes your life, directly. Politicians can try to steal the word but they can’t own it. Only you can. When I drove VW bus many lives ago, I had a sign in the rear window: “Be Alert! The world needs more Lerts.”

                I’m just saying…
                -TA

  26. LabDancer says:

    These memos are conclusive evidence that the Bush OLC glass is neither half empty nor half full, but simply half-glassed.

    I for one am pleased at the fact they carry any value whatsoever – despite such value being neither manifest nor readily discernible.

    Firstly, I think we’d all have to confess to being pretty darned embarrassed if it turned out that, after all is said and done, President George W. Bush and his minder actually had any real law on their side in their numerous fiascos. Otherwise, we might start entertaining doubts as to what our eyes see, and whatever’s left of our sanity.

    Secondly, I’m greatly pleased for how this will ease the difficulties Boalt Hall might otherwise have experienced in kicking Mr Woo off the faculty, out the door, and repeatedly [though at all times making sure not to cause death or lasting damage to a vital organ] around the campus. And who knows: maybe in a few years, with diligence and fidelity to the rule of law, it could even get off the list of faux law schools with Liberty and Regency?

    And thirdly, the lessons of these memos must perforce add to the modern lexicon:

    [1] the sort of observation to the effect that, as sometimes the principles of proper legal interpretation of statutory language demand that the presumptively conjunctive “and” be interpreted as operating more like the disjunctive “or”, it is open for the president of the United States, and arguably even demanded of him as his duty as commander-in-chief of the nation’s armed forces in what might be available to be cast as a ‘time of war’, particularly when such ‘time’ also might be available to be cast as ‘unprecedented’, to view the word “and” in the disjunctive sense without any regard to the strictures of context, precedent, logic and [or] prudence, thereby henceforth is open to being referred to, not by the repeated recitation of its several components, but by the diminutive “woogal”, somewhat in the same manner as Atrios established the measure of time known as a “Friedman unit”, and Colbert established the state of disconnection between verifiable fact and perception as “truthiness”; and

    [2] the result of assembling a self-serving opinion to justify actions bearing clearly illegal aspects, whether already undertaken or the basis of gut determination to do so, or even both, with the superficial appearance of a legal opinion, the following of which results in damage or harm of any kind short of actual physical harm, possibly including moral and spiritual, or is rationally connected to the same, thereby henceforth is open to being referred to as “woomage”; or if actual physical harm, including mental disorder of any kind, as “woomage”; or if death, as “woops”, denoting the singular, such that should, for example, the opinion turn out to have resulted in or rationally connected to 650,000 deaths, each one of those deaths would qualify as a “woops”, and it would be available to refer to them collectively as “650,000 woopsies”.

    • LabDancer says:

      Oops [though definitely not whoops, or woops]: the second appearance of the term “woomage” should be spelled “woondage”.

      My bad; Woo’s very, very bad, and Goldsmith’s, too; but my bad.

  27. THATanonymous says:

    Oh yeah, the big Dick made my point but shorter. “If he’s not impeached (you can’t impeach someone who was not elected can you?), then what the President did was legal.”

    bmaz, whaddya think?

      • THATanonymous says:

        Sorry. Your response does prove that you are a lawyer. Clearly, (most) judges are properly appointed and therefore hold the office legitimately. What I should have asked is: How can you impeach someone for his conduct ‘in office’ if he does not hold the office legitimately?

  28. JThomason says:

    …the sort of observation to the effect that, as sometimes the principles of proper legal interpretation of statutory language demand that the presumptively conjunctive “and” be interpreted as operating more like the disjunctive “or”, it is open for the president of the United States, and arguably even demanded of him as his duty as commander-in-chief of the nation’s armed forces in what might be available to be cast as a ‘time of war’…

    [Emphasis supplied.]

    I don’t mean to be smart but wouldn’t this depend on what the meaning of the word “is” is.

  29. Mary says:

    23 – that’s why I want to try to sit down and really read. Once upon a time, IIRC, the Goldsmith “draft” memo was findable on the net, but I can’t find it now. What I have found, though, is the description of it from the index to the Torture Papers

    And that’s kind of interesting, bc it looks from a fast glance like what is linked above is to Gonzales as WHC and doesn’t look addressed to anyone else or cc:d (but I could just be missing that)

    OTOH, the draft memo is referenced in the Torture Papers as being:

    Memo 28. March 19, 2004
    To: William H. Taft IV, General Counsel, Department of State, William J.
    Haynes II, General Counsel, Department of Defense, John Bellinger,
    Legal Adviser for National Security, Scott Muller, General Counsel,
    Central Intelligence Agency
    Distributed to Alberto R. Gonzales, Counsel to the President
    From: Jack Goldsmith III, Assistant Attorney General, Office of Legal Counsel
    Re:
    Draft of an opinion concerning the meaning of Article 49 of the
    Fourth Geneva Convention as it applies in occupied Iraq

    See here for the html link

    It sure would be “interesting” if Goldsmith issues out and signs (which it appears he did) the March 18 opinion to Gonzales, then the next day, on what is going to Taft (who was about the only one of that crew of Goldsmith, Taft, Haynes, Bellinger and Gonzales who would be worth a consult in the world of private practice) suddenly makes it a “draft”

    Or it could be that the “draft” covers slightly different topics and uses the March 18th memo as a bootstrap “authority” as those OLC guys so frequently did in all this “whole cloth” generation of torture law.

    Pretty convenient for Goldsmith, while disavowing participation in torture memos to Kagan, to have a torture memo signed out on the 18th, but a superceding memo dated one day later, to wider distribution, marked “draft” only.

    Taft’s office must have had dents in the drywall, where he banged his head against the wall every time these idiots piped new nonsense into the sewer system of their legal advice

  30. Mary says:

    52 – 56 WO, you already went where I was going (I’m trying to do real work and go back and forth and didn’t stay up with your comment when I went link searching.

    Do you have a link to the Draft memo?

    • WilliamOckham says:

      I did at one time. I actually just bought the ebook version of The Torture Papers so that I would have a lot this stuff easily at hand. I’m still looking for the link (but I have a mtg. in 5 minutes).

        • Rayne says:

          I like it when you talk to yourself like that. Heh.

          So frustrating to read this, all the circumlocution wherein U.S. and international law are consulted.

          Because we know that their arguments are inconsistent (U.S. law applies here in a matter of war on foreign soil and foreign citizens in re: “protected people”, but U.S. law doesn’t apply in the same context in re: habeas corpus).

          Further, they did everything they could to avoid consulting a separate branch of government, keeping everything within the Executive Branch and when the EO can’t provide cover, move it to the “fourth branch”.

  31. Mary says:

    I’m guessing the draft stayed draft bc Taft “volunteered some thoughts” to the scarecrows in OLC’s version of Oz.

    I’ve only made it through the first three pages, but back when they released the Philbin Military Commissions memo, didn’t they say that they didn’t release it before bc it wasn’t relied on? Sure seems like Goldsmith cites it for authority almost three years later in his March 18 04 memo.

    22 et seq: I don’t think there was any tie between the wiretaps urgency and the torture issues, since the wiretap “heroes” were all pretty ok with torture, Goldsmith refusing to directly overrule Bybee’s crew (withdrawing but not overruling) and has issued one op ed after another basically in favor of keeping up the torture, just letting people know less about it so it doesn’t bother them. Comey not only held the Padilla presser, but filed the el-Masri affidavits and, with all he and Goldsmith learned and knew of during their tenure, neither one motivated themselves to file anything with the Sup Ct correcting the record on Clement’s torture assertions to the court.

    However, there were some things going on back then. For one thing, Maher Arar filed his torture victim’s suit in Jan of 04, so by March people at DOJ would have been cogitating on that some, despite the lack of interest and reporting by the US press. Also during March or therabouts, it’s likely that Thiessen and Church were carrying out the investigations into the So Carolina brig that resulted in the May 04 report to Rumsfeld asserting some pretty grave breaches of the Geneva Conventions in the handling of the detainees at the brig there (including Padilla)

    Some people in gov would have known about the Abu Ghraib photos by around March. In March, gov would have been preparing for the April oral argument in Padilla and Hamdi (who had also been at the US brig IIRC).

    all fwiw and perhaps not responsive to your concern?

    • klynn says:

      Mary,

      Thanks for taking the time to address my question(s).

      There was a great deal going on in the month prior to March 9-19, 2004…Sometimes the convergence of events can just nag at me when it comes to Gov agencies and multiple legal concerns flying about…my experience has been “not so much” coincidental timing. But it appears in this case, I must not “clump” the issues just because of timing.

  32. Mary says:

    87 – Thanks, that’s what I couldn’t find.

    I’m guessing Taft did get some “comments” back to Goldsmith.

  33. freepatriot says:

    (rears head over the horizon)

    figured I might be as popular as polio around here (till tomorrow night when you all bow to my superior football knowledge)

    so I figured I’d have to sneak in

    I ain’t got any worthy topical opinions, but:

    WOO HOO for Boston College and standing up for your word

    so do I unrear my head now, or what ???

    how does this whole head rearing thingy work …

  34. LabDancer says:

    Don’t mind me, but on Goldsmith’s memo, I want to point out the ‘good news’ – well, the ‘news’ anyway, that it’s descent into the 666th circle of hackery hell starts right off the bat from a peculiarly American [All the Bushes are American right? Not All-American, certainly, at least not GWB, but they’re all natural born citizens nonetheless.]. The ‘good’ part is that the descent is all traced back to the quintessentially Bushian bastardization of LBJ’s War – not the REAL war, with armed troops going into a territory [Viet Nam], no matter the malconception, misconception and clusterf**ky of that adventure; but instead LBJ’s War On Poverty.

    The rest of Goldsmith memo is a mix of puffed-up, doughy, half-baked rationalized crap, spiced heavily with obliviousness – thus classic legalishness; but the reason he even gets into the kitchen to cook up that mess is shown in the first 4 or so pages: the Water Boy’s War on Terror, re-cast as America’s “War with al-Qaeda”.

    IOW not a war like all those other things there’s no argument in places like the former League of Nations and the current United Nations qualifies as a war: not a war against the oppressor England over whose laws apply to the territory known to England as the American Colonies; not a war against the country of Mexico over the control of certain territories; not a war against the legal occupants of those states and other territories which refuse to follow the law against slavery; not a war against the country of Germany and its several allies on the other side of entrenched positions in European territory; not a war against the countries of Germany and Japan and their various associated countries, whether impressed or voluntary.

    But a war against a concept: like, again, LBJ’s War on Poverty; GWHB’s War on Drugs; and GWB’s War on Terror, Sub. Nom. “War with al-Qaeda” – the Sub. Nom. being the operative war.

    And why exactly is it the operative war? Because, as Goldsmith acknowledges [because he must], Article 2 of all the GCs undoubtedly DOES apply, because the US happens to be a “High Contracting” party to all the GCs.

    [I hasten to add that, somehow, Goldsmith both acknowledged, by simply noting, whereupon he quickly retreated from the field, that Article 1 of all the GCs, which applies in territorial occupations where BOTH sides are “High Contracting” parties, also did … something; can’t tell what … because the country of Iraq had been UNCONDITIONALLY signed on to the GCs – – since 195 frickin’ 6!]

    [I also hasten to add that, somehow again, Goldsmith both acknowledged, by simply noting, whereupon he entirely abandoned the logical follow-up question, that, even assuming the existence and equivalency to a REAL war of that “War with al-Qaeda”, where was there any evidence that [a] the country of Iraq had anything whatsoever to do with the US “War with al-Qaeda”, or [b] that al-Qaeda was in any way at all, real or conceptual, in the territory of the country of Iraq.]

    What we, or at least President Bush and his administration, get is this crap [from page 4]:

    “the drafters of the Geneva Conventions did not contemplate the possibility of an armed conflict between a state and an international non-state terrorist organization like al Qaeda”

    on which he does not, as one might think reasonable to do, not just in all the circumstances but bearing in mind the potential for this memo to be used in invading the territory of another sovereign state, and the consequences of just that, consider WHY that is – but instead does not show any hesitation whatsoever in just moving on to the next item in his check list, being in the next sentence:

    “It is thus no surprise that, unlike the armed conflict with Iraq, the armed conflict with al Qaeda does not satisfy any of the prerequisites for the applicability of GC”.

    In the terms used in describing logic, IMHO Goldsmith is in these sentences in full execution of a disjunctive syllogism.

    Thus, down falls the statue to Jack Goldsmith.

    R.I.P., you fucking neocon hack.

    • freepatriot says:

      a war against a concept

      technically, it’s a war on a tactical form of warfare

      terrorism is a tactic

      would you (or could you) declare war against flank attacks ???

      is it possible to wage war against “Amphibious Assaults” ???

      terrorism is a tactic, and the only way to stamp it out is to kill off every human on the planet (although, I’m pretty sure I could find other life forms that use terrorist tactics against their enemies)

      so there’s that …

    • LabDancer says:

      Shorter Goldsmith: To the extent that there are nothing more than people in a territory, we have to treat them in accordance with the GCs. But the folks who put together the GCs [including us] must be presumed to have deliberately contemplated concept wars, and by extension all conceivable kinds of concept wars, including concept wars unilaterally declared by nation-states who decide, even if merely by implication, that some people are not merely people but are embodiments of the concept they’ve decided to declare war on.

      It almost feels like the comfort some argue is available from religious rationalization: No matter how many dead, ruined and displaced Iraqis whose condition as such might trace to the US invasion and occupation of Iraq, none of them are in that condition as a direct result of violation of the Geneva Conventions, but instead are merely so as a by-product of the authors of the GCs not having the foresight to extend complementary rights to their conceptual beings.

    • Rayne says:

      Thank you, that’s exactly the inconsistency. It’s a war when they say it’s a war, and American law applies when they (the executive branch) says it applies, but it’s not a war since it’s not a nation-state but a law enforcement action coincidentally in tandem with a trumped up war and they refuse to acknowledge this because being any place besides this fuzzy no-man’s-land (not a war, not a law enforcement action) puts them firmly in legal jeopardy.

      And any of them that touch it are damned, stuck to a legal and moral tar baby.

      • freepatriot says:

        it’s not a war since it’s not a nation-state but a law enforcement action coincidentally in tandem with a trumped up war and they refuse to acknowledge this because being any place besides this fuzzy no-man’s-land (not a war, not a law enforcement action) puts them firmly in legal jeopardy.

        It’s a “WAR”

        we’re arguing this “War on a Concept” shit cuz george didn’t have enough of a sack to declare war on the real enemy, wahabi muslim fundementalists

        there are two wars going on, the war against wahabism and the propaganda- bullshit war being waged to protect george bush’s wahabist business partners

        is that enough of the truth to straighten out the conversation ???

        • Rayne says:

          There’s only a war of words, a war of propaganda.

          A war cannot be declared on a non-nation-state entity; it’s only a police or law enforcement action otherwise, and it has to be executed in the same fashion as all other cross-border law enforcement actions for this reason. That means international and U.S. law applies just as it does against drug smugglers from any South American country or pirates in Asian waters. The founding fathers may not have envisioned armed conflict with a non-state actor, but both the Constitution and the history of this country have already provided adequate precedent by which the administration should have been guided.

          Frankly, there’s no war against wahabism either, because we are firmly entrenched economically with it, have never sought to change that fundamental relationship. Going to war against a religious sect would also be unconstitutional, so they can’t even make pretense at that; they really couldn’t, because doing so would have set precedent that could have backfired on them.

          • freepatriot says:

            I view al quada as quasi-equivalent to the IRA at the turn of the last century (AQ does have territorial ambitions)

            and I don’t see much difference between government and religion, especially in the Mid East

            America’s constitutional guarantee of separation of church and state is kinda unique

            we’re into uncharted territory here*, and the constitution was designed to bend in the face of new problems

            *unless you wanna include the NAZIs attempt to create a religion, but that is an aspect that history ignores

    • prostratedragon says:

      (and trailing back up to WO who first busted it) So this supports the long-inferred existence of a recredentialling kit that the agile can play, simultaneously to snatch their potatoes out of a current fire and position themselves for the next tilt of the board.

      I can well imagine Goldsmith and others explaining frantically that they would be O so much more valuable to the cause in the long run for their ability to serve as beacons of justice in our present foggy wilderness than continuing as gallowglasses to the king. For a small consideration, they might even have found an advocate for this view.

      Dante’s clipping service, with regular updates?

  35. maryo2 says:

    Are there US states that are more likely to apply the death penalty to the torture memo writers? If yes, how can we get their trials to take place in those states? Just askin’.

    • freepatriot says:

      it’s gonna be a federal issue, not a state issue

      and here’s one for the legal beagles:

      is it really possible that the FISA immunity could be voided ???

      cuz I KNOW a lot of other stuff can be voided, but voiding the FISA immunity makes things a LOT more interesting

  36. acquarius74 says:

    I came late and read slower than most, but I opened the DIGG and commented there.

    This is an extraordinary article, as too are the comments. FWIW, I’m so proud of all of you!

    Please DIGG it up high.

  37. LabDancer says:

    In fairness to Goldsmith, he didn’t start the syllogisms:

    My dad hated broccoli; still does. So I’ve kept my eye out for broccoli.

    Last year I got sick. Bunch of so-called government experts, bureaucrats – we all know the type – told me: Mister President – you watch out for the sorrel now, we’ve had reports; don’t wanna get sick.

    I didn’t listen; too busy watchin’ out for brocolli.

    [Lookie there: is that a sprig of broccoli under my desk?]

    So last year, while I wasn’t watching for it, I ate some sorrel – and I got sick.

    No could have figured that one.

    But there’s a big lesson for us all here: sorrel is bad; sorrel is plain evil.

    Now I’m from Texas, but also I went to Yale, so I know all about the difference between broccoli and sorrel. But what folks don’t seem to get is, they’re both green, & they’re both leafy – different leafy but leafy – and also, turns out if you go to a supermarket, they’re both right there: brocolli and sprouts – – right in the produce department. Don’t take my word for it; I had government experts check it out.

    What I’m saying here is folks just have to do the math. I did, and as your commander-in-chief, I’m hereby declaring a War on Produce –

    and by the way we’re going after broccoli – pronto.

  38. MadDog says:

    OT – From Secrecy News comes information regard the status of the investigation into the CIA’s destruction of their torture videos:

    Criminal Investigation of CIA Video Destruction is “Ongoing”

    …“Investigators are now in the process of scheduling interviews with the remaining witnesses to be interviewed in this investigation,” wrote John H. Durham, Acting U.S. Attorney for the Eastern District of Virginia, in an affidavit (pdf) late last month. “Based on the investigative accomplishments to date, we anticipate that by mid-February 2009, and no later than February 28, 2009, we will have completed the interviews”…

    • MadDog says:

      One might note that Durham’s redacted affidavit says this in Section 3:

      …Disclosure of the contents of this declaration would, in my estimation, significantly damage the integrity of this investigation by alerting targets and/or potential targets to the progess of our investigation and the work that remains outstanding…

      And this in Section 4:

      …Additionally, as part of our ongoing disclosure obligations to the court, our investigators provided relevant information gathered during the Moussaoui portion of our investigation to prosecutors at the United States Attorney’s Office for the Eastern District of Virginia…

      (Redaction for at least a sentence or two occurs to the end of this paragraph)

      I wonder if this same Moussaoui information was given to the judge that heard the case, Judge Leonie Brinkema?

      Or is that the potential subject of another prosecution? Perhaps of those DOJ miscreants who hid the ball?

    • bmaz says:

      They are slooooow walking this while evidence spoils, memories lapse and statutes expire.

      In other news, Generalissimo Franco is still dead.

      • MadDog says:

        Totally agree since Durham has had this assignment since January 2, 2008.

        That it has taken over a year to reach this point in such a simple case, says a lot about running out the clock. I wonder if the Statute of Limitations is at risk here.

        • LabDancer says:

          All things considered, I would pin most of the blame on the late start for putting her in this position. As we know from the Plame pleak investigation, the time-tested, standard and approved modus operandi is work the facts from the ground up, and it’s seems likely that would entail here arranging for the attendance, working up for, examining and reviewing the status from the testimony of quite a number of CIA types, present and past, and, I would hope as well, persons outside the Agency but materially involved. If the end product turns out to be not being able to go after the hands-on types, but a strong base to pursue tutti sotto capos, tutti consigliere & get both capo & vice capifamiglia off their legacy tours permanently, maybe losing out at putting l’uomini d’onore behind bars will be at least tolerable.

          Besides: did you really expect his own personal DoJ to indict him?

          • freepatriot says:

            did you really expect his (george w bush’s) own personal DoJ to indict him?

            based on his track record ???

            YES

            Yes I did

            I mean, he’s fucked up everything else he touched, why not that ???

            the dude could fuck up a two car parade. I’m supposed to think he could manipulate the DOJ successfully ???

        • bmaz says:

          I wonder if the Statute of Limitations is at risk here.

          Um, YEAH.

          The tapes themselves were presumptively destroyed in November 2005, but there was a continuing series of events in courtrooms by prosecutors from the time the recordings were made going forward that at least arguably may constitute crimes. Including one Ms. Brinkema, who I believe was referenced above. Every day that passes very well may signal a five year statute running on some crime. How do you know without a freaking timely investigation?

          • MadDog says:

            May I suggest that for Federal crimes committed by Federal employees, that Congress increase the Statute of Limitations to say…oh…about 20 years?

            Yeah, I know, again, in my dreams.

            • freepatriot says:

              RICO has an automatic and superseding 10 year limitation, is applicable to most of the crimes we’re talking about, and hasn’t really been tested in this type of case

                • THATanonymous says:

                  Yes, but in ANOTHER 10 years there will be another set of dodges and besides, who says we have to wait patiently?

              • bmaz says:

                Not sure if you will ever get RICO applied to criminal acts allegedly done in the name of the federal government. Against any governmental entity is tough; only ever heard of one instance, against a police department in Florida.

                • freepatriot says:

                  I read an analysis of some Watergate prosecutions, and supposedly RICO wasn’t applied because it was untested constitutionally at that time

                  RICO ain’t easy to qualify for, but if you do, convictions are a lot easier to get

                  we spent $70 million to investigate, well, you know …

                  • kspena says:

                    Thanks to you and bmaz; I was wondering the same thing…It’s so natural to imagine this government in terms of ‘organized crime’..

      • freepatriot says:

        Generalissimo Franco is still dead

        he’s gettin better

        last I heard, he was critically dead

        (wink)

  39. JClausen says:

    Dam,
    I read every comment and am amazed at the intellectual power this blog generates. I do not comment often, but this place gives me much more of an education than I’ve ever experienced. Thank you to all of you for helping me to keep my sanity during this Constitutional crises.

    I feel after reading this thread like asking “Was it good for you too?*g*

    • skdadl says:

      Hot buttered dark rum, with a little lemon, a little honey. I don’t know whether those cure anything (although the steam is good for the passages), but if you make ‘em strong enough, you won’t care. May you recover quickly and completely indeed.

      If I thought that JClausen @ 115 was a smoker, I’d offer him a cigarette.

      I should reform my ways, shouldn’t I.

  40. Mary says:

    98 – from the arguments made in Ex Parte Milligan (which, if they reissued it in Good News version would pretty much look like Fox News hacks v. Russ Feingold) about an AG finding someone to write something to support his argument, as opposed to an argument proceeding from logic and authority:

    Court sycophants and party hacks have many times written pamphlets, and perhaps large volumes to show that those whom they serve should be allowed to work out their bloody will upon the people. No abuse of power is too flagrant to find its defenders.

    And on the abuse of process inherent in being one of “the President’s men” in times of strong political dissent

    All history proves that public officers of any government when they are engaged in a severe struggle to retain their places, become bitter and ferocious, and hate those who oppose them, even in the most legitimate way, with a rancor which they never exhibit towards actual crime. This kind of malignity vents itself in prosecutions for political offences, sedition, conspiracy, libel, and treason, and the charges are generally founded upon the information of spies and delators, who make merchandise of their oaths, and trade in the blood of their fellow men.

    And a final quote that finds its context here as easily as it did then:

    That class of jurists and statesmen who hold that the trial by jury is lost to the citizen during the existence of war, must carry out their doctrine theoretically and practically to its ultimate consequences. The right of trial by jury being gone, all other rights are gone with it; therefore a man may be arrested without an accusation and kept in prison during the pleasure of his captors; his papers may be searched without a warrant; his property may be confiscated behind his back, and he has no earthly means of redress. Nay, an attempt to get a just remedy is construed as a new crime. He dare not even complain, for the right of free speech is gone with the rest of his rights. If you sanction that doctrine, what is to be the consequence?I do not speak of what is past and gone; but in case of a future war what results will follow from your decision indorsing the Attorney-General’s views? They are very obvious. At the instant when the war begins, our whole system of legal government will tumble into ruin, and if we are left in the enjoyment of any privileges at all we will owe it not to the Constitution and laws, but to the mercy or policy of those persons who may then happen to control the organized physical force of the country.

    This puts us in a most precarious condition; we must have war often, do whatwe may to avoid it. The President or the Congress can provoke it, and they can keep it going even after the actual conflict of arms is over. They could make war a chronic condition of the country, and the slavery of the people perpetual. Nay, we are at the mercy of any foreign potentate who may envy us the possession of those liberties which we boast of so much; he can shatter our Constitution without striking a single blow or bringing a gun to bear upon us. A simple declaration of hostilities is more terrible to us than an army with banners.

    emph added

    Someone understood the arguments tendered in Milligan – unfortunately those who understood it best were not in our Dept of Justice and not even American.

    How sad is that?

  41. JohnLopresti says:

    First hue of Goldsmith I noticed was photographic image, guaranteed not scannable for words, lengthy, memorize it, for reading into photographic memory; but less useful as research. I agree with some readers who observe the draft flurry of the epoch; later writings by Yoo and Goldsmith seemed to word process excerpt some of this aggregate of memos.

    Then I searched for admiralty law issues, both in the Yoo document with software lookup and the Goldsmith opus by reading. I think the floating prisons have yet to see much public sphere documentation publication. I wonder if Goldsmith even contributed much to that program as an implementation, but think it likely he helped design the legal glosses. he and Yoo both had experience in extraterritorial law.

    Also, the commonly discussed topic of illicitude of process converting battlefield regs into law of the land, global unilateral law essentially for six years when conflicts were often desultory rather than hot, remains of interest: how the inversion of classic covenants occurred. Goldsmith seems to be avoiding linkage between sentences; which is why it looks like a draft to me; merely responding to assignments from the executive, what they wanted to do, how to reverse engineer international law. But naught about the nautical.

    And a glance at one paper late to the circuit shows just this week a report that the Senate armedServices committee full report 250pp remains in review at DoD. There was little mention of the lawyers there and at TheCompany in today’s group of memos; or the group of Principals that planned implementations and strategized as depicted in Fine’s fbi IG report.

  42. freepatriot says:

    damn, I though I heard em all, but, a comment at TPM has me reconsiderin

    describing norm coleman:

    If he shakes your hand, count your fingers

    ouch !!!

  43. acquarius74 says:

    Please forgive my going OT. Today Hugo Chavez kicked out the Israeli ambassador, accusing the Israeli government of genocide. He said he considers Israel a pawn of U.S.

    Israel responded by ordering the Venezuelan envoy to leave the country immediately.

    http://www.radionetherlands.nl…..ambassador

        • hackworth says:

          Chavez is a leader with many good qualities. It is admirable that he is doing some good for the poor with Venezuela’s oil money. His biggest fault perhaps is that he won’t relinquish the throne. He is right about Israel and the US.

  44. behindthefall says:

    Did you see the op-ed piece by Bolton and Yoo in the NYT yesterday hoping that Obama/Biden would restore the Constitution by requiring a 2/3 approval in, what is it, the Senate?

    When they’re on the horse, they’ll cut you down. When you’re on the horse, they’ll spear you with pikes. They are simply fighters who will say anything to help their situation at any moment.

  45. THATanonymous says:

    Think about this:

    If you can understand the dodge you discover someone using to avoid getting caught, criminal charges, jail, fines, etc., its a really good bet somebody else has already used, is using, or will use it (assuming that it is an effective dodge).

    Since there are so many working/workable dodges (assume you as an honest person only know a small percent of the ways to avoid responsibility), it raises the question — if you, a group or a country need to redress wholesale political crimes, financial crimes and crimes of religion (and there are many more such criminals than could possibly be prosecuted), assuming you are interested in an effective outcome, what options do you ACTUALLY have available, to hand, that WILL change things?

    Tip: Plunger doesn’t get to guess. He/she already knows.

    Post your answers below, … or all over the internet.

  46. freepatriot says:

    assuming you are interested in an effective outcome, what options do you ACTUALLY have available, to hand, that WILL change things?

    political skills

    for a real world example, see Abe Lincoln

      • randiego says:

        Yes.

        The documentary was written and produced by Sherry Jones, the co-producer is my friend Carey Murphy.

        It was commissioned by PBS, and then when it was done they were afraid to show it before the election and inauguration (that was in October). The quote to me was “the PBS programming service was reluctant to show it before…” . Individual PBS affiliates were allowed to show it when they wanted. Only one did, and fortunately for me, that was KPBS in San Diego. Hopefully, the other affiliates will be showing it soon.

        What really amazed me was the interviews. Brave, powerful and compelling.

        Check it out. There’s a video on the site, and a full pdf transcript.

        Torturing Democracy

        • acquarius74 says:

          randiego, you and I seem to have hit the transmit button at the same moment. Please pass along my deepest appreciation to your friend, Carey Murphy. All who worked to produce this film have done a great service for our country.

          Hey, bmaz, how about one of your best articles on this film? Draw in all your readers and ask that they drum this up. Let’s raise such a ruckus that Eric Holder will have to stand for justice like a man or weasel like a coward.

          • BayStateLibrul says:

            Let Bmaz and EW, from this day forward, drum beat Horton’s and Murph’s clarion call for justice.
            “Those who seek power”, Plato says, “Are invariably the least fit to hold it.”
            Bush and Cheney’s lies will keep growing and growing until, as the
            Blue Fairy says “It’s plain as the nose on their faces.”
            We must lobby for accountability.
            Nose rubbing, chair shots, and heavy wielding required.

            Early trash talking, cuz it’s state holiday in Oklahoma, and we are
            runwaying out of icy Boston, for some red hot Bicardi Razz:

            Oklahoma 35 Florida 17
            Freep made me do it.

            • acquarius74 says:

              In order to speak so wisely about “those who seek power”, Plato must have seen a lot of political corruption in his day. Look what they did to Socrates, the wisest man of his time.

              IMO, our 2 headed dictator can join the circle of Caligula.

              Harsh words? What they have done to America is more than harsh.

      • acquarius74 says:

        I just finished watching the 3 part version. It goes right along with EW’s article and all your fine comments.

        It is the documentary that PBS had back in Fall of 2008 but didn’t dare show until ‘next year”.

        I finally got it by http://www.torturingdemocracy.org then scrolling menu to the video.

        Tell randiego that he has one fine buddy! The photography is great. The study of the facial expressions and body language of Bush, Cheney and Rumsfeld tells a lot. Bush & Cheney are almost salivating in some pics.

        I wish Obama had chosen Alberto J. Mora for Atty Gen’l. He stood up for Justice against that whole sorry pack.

    • skdadl says:

      Heh. I only just read that, and you’re probably long gone. I’m glad to see that logicians agree, more or less (far as I can understand), with grammarians.

      But Function at the Junction is definitely more fun than either.

  47. timbo says:

    What is appalling about this is that the writers of these memos assumed that the subsequent regimes in the United States would not seriously try to question the pablum they wrote down between 2001-2005. That’s the scary part…and, yeah, we have to put some of these guys in jail for building a torture apparatus in violation of American and American ratified international treaties. Otherwise, yeah, there is not law but power of the moment. And that’s what the Framers tried to put a cap on…to check the power of the moment so that despotic personalities like the writers of these memos would not remain in power for long, nor would they build a festering cancer that would drag the Republic down through the hubris of despots. The Republic is sick. The same logic of hiding the problems inherent in the current power structures in the United States has also caused a world wide economic meltdown. Through mismanagement and thoughtlessness, the whole world, not just the United States, has been set back quite a bit.

    And when these despotic personalities run into failures in policy, they usually resort to war to distract the ruled from the rulers’ misdeeds and competencies. This must be checked now…or, frankly, America, as a representative democracy, is one in name only.

    • kspena says:

      sorry-That was last month. Here’s today’s entry:

      No Comment
      By Scott Horton
      January 7, 11:47 PM
      The Case for Prosecutions
      In an interview on NPR’s “Fresh Air,” British international law scholar Philippe Sands reviews the prospects for war crimes prosecutions of leading figures of the Bush Administration. Most likely to face indictment in his view: Cheney chief of staff David Addington, former Attorney General Alberto Gonzales, Defense Department General Counsel (and now Chevron lawyer) Jim Haynes, and torture memorandum author and University of California law professor John Yoo. Download the interview here.

      On NPR’s “On Point,” I debate the case for a war crimes prosecution of Bush and Cheney with National Review legal affairs writer Andrew McCarthy, and Washington Monthly’s Charles Homans makes the case for a truth commission. Download that program here.

  48. prostratedragon says:

    Interesting related story courtesy Laura Rozen (W&P), on Obama plan to revamp the domestic security policy structure. She quotes NYT:

    “The plan would eliminate the independent homeland security adviser’s office and assign those duties to the National Security Council to streamline sometimes overlapping functions. A deputy national security adviser would be charged with overseeing the effort to guard against terrorism and to respond to natural disasters. Democrats close to the transition said Mr. Obama’s choice for that job was John O. Brennan, a longtime C.I.A. veteran who was the front-runner to head the spy agency until withdrawing in November amid criticism of his views on interrogation and detention policies. His nomination would not require Senate confirmation.”

  49. perris says:

    McClatchy’s Marisa Taylor has gotten a hold of three more Yoo memos–and one Jack Goldsmith memo–that reveal the Administration’s thinking on the Iraq War.

    They are:

    October 23, 2002: Bush has authority to declare war against Iraq because his Daddy did

    November 8, 2002: UN 1441 doesn’t prevent Bush from going to war outside the terms of 1441

    December 7, 2002: If Scooter Libby claims the Iraqis lied on their WMD declaration, Bush can declare war

    March 18, 2004: If the US ships Iraqis outside of Iraq, then they can torture them [Jack Goldsmith’s opinion]

    marcy, these are such bizarre memos I thought you were posting snark since you have your memo in direct blockquote

    I think for the sake of internet searches you might want to edit in that “these are what the memo’s say in layman’s terms” or something similar

    I had to click a link to see this is not snark at all, this really is what yoo wrote but not in that exact language

  50. Mary says:

    168 – Doesn’t sound like Obama is thinking that Brennan will need to testify in any torture investigations, does it?

    Going back to EW’s question on Powell, for the March memo it is interesting that one goes to Gonzales first, then is used as a bootstrap reference in the footnotes, right from the get go, in the “draft” memo on setting up torture shipments of human cargo. While the memo on the 18th is signed out, the one on the 19th is circulated to Addington’s Haynes, to Rice’s Bellinger and Powell’s Taft. We know that Bellinger sat in on the “creative torture” meetings and has refused to say waterboarding Americans is torture and was the pliant puppy who replaced Taft at State. We know that Haynes biggest problem with torture was keeping his drool off the memos. We know Goldsmith took the torture field trips and sat silent on torture at OLC and through misrepresentations to the Sup Ct. Taft, though, not so much. If the memo of the 19th never got signed out to final, my wild guess would be bc of the input from Powell’s office and Taft. fwiw.

    From a Horton “Six Questions” with Mary Ellen O’Connell (Notre Dame prof with a book out on International law that does NOT follow the Goldsmith/Posner posit of, “whatever you’re big enough to get away with at the time, that’s the law”) done early in Dec:

    http://www.harpers.org/archive…..c-90003966

    5. The Legal Adviser in the State Department, John Bellinger, has advanced a series of radical excuses for American shortcomings in connection with the programmatic introduction of torture and disappearances. In arguments presented to the Committee Against Torture, he argued that the Convention Against Torture was inapplicable in wartime (which in the view of this administration is all the time) because the law of armed conflict was a lex specialis that ruled the field. What do you think of the Bellinger argument? Might it have been contrived to deal with the criminal law exposure that Bellinger and others in the administration face?

    Bellinger is wrong. The prohibition on torture is a non-derogable, absolute prohibition binding on the United States at all times. While there is a lex specialis applicable in armed conflict, fundamental human rights protections are not suspended when that law is triggered. And I should add the law of armed conflict is triggered by real armed conflict where intense fighting between organized armed groups is occurring—not phony wars like the “global war on terrorism.”

    When Bellinger left the National Security Council for the State Department to take over from Will Taft, his first speeches attempted to do what the torture memos did—make complicated arguments on the law and weigh down the critics in the details. His arguments were not as plainly erroneous as the torture memos, but they were far from the best analysis. Bellinger took this approach on detainee issues but also respecting other international law issues faced by the United States—such as executions of persons in defiance of their rights under the Vienna Convention on Consular Relations and orders of the International Court of Justice. More recently, I think he has moved away from this strategy to one perhaps following Jack Goldsmith: Convince people you support the rule of law, distract them from your role in torture, disappearance, and abuse, then when the accounting comes hope the focus lands on others. Bellinger has come out in strong support for the Law of the Sea Convention and even the 1954 Hague Convention for the Protection of Cultural Heritage in the Event of Armed Conflict–he was writing op-eds on these topics just as the ACLU obtained the document produced at the Office of Legal Counsel dated August 4, 2004, saying that waterboarding is not torture. According to the ACLU, waterboarding was discussed at meetings of the National Security Council when Bellinger was present.

    emph added

  51. Mary says:

    Of a piece with much of the above:

    Tel Aviv Judge Defends Rights of Arab Anti-War Protestors

    The Tel Aviv Magistrate’s Court Wednesday quashed a request to restrict the movement of four Arab residents of Haifa who demonstrated against the war in Gaza, with the prosecutor saying their protest “damages national morale.”

    “There’s no doubt that freedom of expression is the most precious element of democracy, but only while maintaining the boundaries between the permitted and the prohibited,” prosecutor Victoria Ben-Meir said, c… “Let us not forget that we’re talking about a time of war; the entire incident damages the national morale,” she said.

    But the judge took Ben-Meir to task. “As we know, the real test of the readiness of a society to stand up for the freedoms it cherishes is precisely during times of difficulty and distress,”

    • skdadl says:

      Precisely. It was war that drove the creation of the Geneva Conventions and the UN Declaration in the first place. It makes no sense to argue that they are inapplicable in times of … war.

  52. rkilowatt says:

    on dodges:
    “… the whole atmosphere of every prison is an atmosphere of glorification of that sort of gambling in “clever strokes” which constitutes the very essence of theft, swindling and all sorts of similar anti-social deeds.” PKropotkin’s Memoirs, ca 1899