About those Missing OLC Opinions

(Note: I’m scheduled to be on Mark Levine’s Inside Scoop today at 5PM ET. You can listen in here.)

Okay okay already. Here’s your damn missing OLC opinion post.

As a number of you have pointed out, ProPublica did a very cool database of all the OLC opinions on executive power, torture, and warrantless wiretapping that we know of. The database collects in one place, in sortable form, the opinions that track Bush’s abuse of power. 

I had done a timeline mapping the warrantless wiretap opinions to known events associated with Bush’s illegal program (though it’s not sortable like the ProPublica one). And don’t forget that John Conyers gave us a very detailed description of that opinion eliminating the 4th Amendment.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”293 [my emphasis]

I had not, however, closely reviewed the ACLU’s list of torture opinions (which is what ProPublica based this on–and don’t forget ACLU has gotten badly stung in the economic crash and could use some love). 

The most intriguing of those opinions is this one:

8/1/02 Jay S. Bybee, Assistant Attorney General, OLC, Determines whether a specific interrogation was torture

Remember, John Ascroft has all but admitted that they started tortuing Abu Zubaydah before the August 1, 2002 Bybee/Yoo memo authorizing water-boarding was completed. I guess while they were troubling Bybee and Yoo, they got them to retroactively declare the torture of Abu Zubaydah not torture.

Curiously, though, they’re still unwillingly to charge Abu Zubaydah and let him speak publicly. I guess that particular memo presumably retroactively authorizing torture isn’t all that sound.

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  1. perris says:

    everyone must watch these youtubes about fema camps;

    addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

    marcy, once you see those youtubes you will realize your bold is far missplaced, please to watch


    http://www.youtube.com/view_pl…..RwBNLZQEQ8

    and look for others equally frightening;

    http://www.youtube.com/results…..&aq=f

  2. scribe says:

    Thinking about the whole March 2004 hospital visit and what we were talking about in the comments thread the other day – following on Gonzo sort of admitting the other day that the government knew something was up in Spain prior to it actually happening on 3/11/04 – one has to wonder what, if anything, this episode had to do with Brandon Mayfield.

    You remember him: the former soldier, Muslim convert, and Oregon lawyer who was tangled up in an FBI investigation post the Spanish train bombings of 3/11/04 which led to his being in all sorts of trouble because the government got the wrong fingerprint – his – on a backpack in Spain. He hired Gerry Spence and successfully sued over his treatment, and the government paid.

    Someone ought to have Conyers (and Whitehouse), for starters talk to Spence.

    • perris says:

      Someone ought to have Conyers (and Whitehouse), for starters talk to Spence.

      I’ll look to conyers the day after he throws rove and meyers in jail for defying subpeona and contempt of congress

  3. bobschacht says:

    Okay okay already. Here’s your damn missing OLC opinion post.

    O sagacious one, please forgive our/my impertinence. We wait with bated breath anyways, and to have received your enticing promise, we/I got overly anxious. *g*

    Anyway, glad to see the preliminary results. I’m sure that we haven’t seen the end of this.

    Bob in HI

  4. JTMinIA says:

    This is really painful. Blago is gone, but only 58 of the 59 yes votes is showing because one schmuck’s … er, Senator’s … buttomn isn’t working.

    It’s funny, sick, and sad, all at once. Either way, it’ll be unanimous.

  5. LabDancer says:

    “I guess that particular memo presumably retroactively authorizing torture isn’t all that sound”

    And I guess that after taking down an already deeply mentally-ill person, causing him life-threatening injuries and severe permanent damage, fixing up his physical state sufficient to sustain some form of being, then proceeding over the ensuing months, to torture the hell out of him in as many ways as the administration’s imagination and ‘tolerance’ allowed, it wasn’t considered all that “sound” a P.R. move to prop up the resulting mess for a public viewing.

    When it happens – and unless he’s dead already or dies beforehand it will happen – unless he’s been disappeared as effectively as the Torture Tapes – it is flat-out guaranteed to truly qualify as a ‘defining moment’.

  6. lllphd says:

    reading – gagging (pun intended) – through yoo’s op ed today, just could not help but choke on this quote:

    “The first thing any lawyer will do is tell his clients to shut up….”

    evidently the poor man has not spent enough time listening to his own attorney.

    all these interviews, op-eds, and public pronouncements are obviously designed to bolster public support for these insane positions, not to mention giving them some form of cover for their crimes.

    indefensible.

    but i hardly think the public has the stomach for their arguments, much less the acts themselves.

    i do hope we can make some attempt at apologeia to the world for these crimes, but also insist on demonstrating that we have again been a beacon, this time not so much for what good can be done through democracy, but also how much evil. a striking lesson to remember that self-governance can never be a spectator sport. persistent vigilance.

    • bobschacht says:

      “The first thing any lawyer will do is tell his clients to shut up….”

      evidently the poor man has not spent enough time listening to his own attorney.

      Hmmm. Do I detect a similarity here between Yoo and Blago?

      Bob in HI

    • jdmckay says:

      “The first thing any lawyer will do is tell his clients to shut up….”

      I thought Yoo’s entire screed… whole slew of “whys” they should be afforded no due process and all should be treated as guilty toxic waste, read to me like implicit admission of creating a legal opinion supporting a given proposition w/out regard to US constitution.

      Outside of friendly confines of WSJ OpEd, I think most ‘merikans would read it as a torturer’s confession.

  7. SaltinWound says:

    Those in favor of not prosecuting like to refer to good faith reliance on these opinions. How can they argue that in a case where the opinion was retroactive?

  8. Leen says:

    EW at Democracy Now
    http://www.democracynow.org/20…..m_law_book
    Bush’s Secret Counterterrorism Law Book—and the Demands to Release It
    Memosweb

    We take a look at the Bush administration’s secret Justice Department memos on detention, interrogation, surveillance and prosecution. These opinions were issued by the Office of Legal Counsel and advised the executive branch on the legality of a range of tactics in fighting the so-called “war on terror.” A few of these records have been made public, but many remain secret, including those relating to the Bush administration’s domestic surveillance program. The investigative website ProPublica has compiled the first public database of all that is currently known about these memos. [includes rush transcript]

  9. Leen says:

    Legal Jeopardy For American Torturers Here and Abroad? A Q & A Session With An Expert on the Issue, Philippe Sands
    By JOHN W. DEAN
    Friday, Jan. 23, 2009
    http://writ.news.findlaw.com/dean/20090123.html

    Bush’s Torturers Have Serious Jeopardy

    Philippe Sands, a Queen’s Counsel at Matrix Chambers and Professor of International law at University College London, has assembled a powerful indictment of the key Bush Administration people involved in torture in his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. He explains the legal exposure of people like former attorney general Alberto Gonzales, Dick Cheney’s counsel and later chief of staff David Addington, former Office of Legal Counsel attorney John Yoo, the former Department of Defense general counsel Jim Haynes, and others for their involvement in the torture of detainees at Guantanamo, Abu Ghraib, and CIA secret prisons.

    After reading Sands’s book and, more recently, listening to his comments on Terry Gross’s NPR show “Fresh Air,” on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity – for which the world is ready to hold them responsible.

    Here is what Professor Sands told Terry Gross on NPR: “In talking to prosecutors around the world, as I have done, they all recognize the very real political difficulties of taking on someone who has been Vice President of the United States, or President of the United States, or Secretary of Defense of the United States. But those arguments melt away as you go a little down the chain. And I don’t think the same arguments would apply in relation to the man, for example, who was Vice President Cheney’s general counsel, at the time the decisions were taken, David Addington…. I think he faces a very real risk of, you know, investigation for complicity in an act that amounts to torture….” Later, referring to “international investigations,” he added that Addington (and others) were at “serious risk of being investigated.”

    These are remarkable statements from a very well-informed man. Because we have a common publisher, I was able to contact him in London, and pose a few questions. I find his book, statements and responses to my questions chilling.

    Q & A With Professor Philippe Sands

    QUESTION: When talking to Ms. Gross you said you were not calling for such international investigations because we all need more facts. Given the fact that Judge Susan Crawford has now made clear that torture occurred, do you – and others with your expertise and background – have sufficient information to call for other countries to take action if the Obama Administration fails to act?

    ANSWER: Last week’s intervention by Susan Crawford, confirming that torture occurred at Guantanamo, is highly significant (as I explain in a piece I wrote with Dahlia Lithwick: “The Turning Point: How the Susan Crawford interview changes everything we know about torture”). The evidence as to torture, with all that implies for domestic and foreign criminal investigation, is compelling. Domestic and foreign investigators already have ample evidence to commence investigation, if so requested or on their own account, even if the whole picture is not yet available. That has implications for the potential exposure of different individuals, depending on the nature and extent of their involvement in acts that have elements of a criminal conspiracy to subvert the law.

    QUESTION: If yes, can you share what you and others might do, and when?

    ANSWER: I am in the process of completing the epilogue to my book Torture Team, which will be published in May 2009. That will set out, in detail, what I learned when I made a return visit to the European judge and prosecutor with whom I met in the summer of 2007, as described in the book. Watch this space.

    QUESTION: If no, what would it take for those like you to call for all countries with potential jurisdiction to take action?

    ANSWER: More than 140 countries may potentially exercise jurisdiction over former members of the Bush Administration for violations of the 1984 Torture Convention and the 1949 Geneva Conventions, including the standards reflected in their Common Article 3. Whether they do so, and how they might do so, turns on a range of factors, including their domestic procedural rules. In the United Kingdom, one criminal investigation is already underway, in relation to the alleged treatment of Binyam Mohammed, a Guantanamo detainee who is a British resident. I doubt it will be the last. That said, having set out the relevant facts in one case [in my book], to the best of my abilities, I feel it will now be for others to take this forward as they consider appropriate.

    MUSIC FOR OUR EARS

    John Dean
    “My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be “change we can believe in” if the new administration harbors war criminals – which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?”

    MORE MUSIC

    • jdmckay says:

      John Dean
      “My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be “change we can believe in” if the new administration harbors war criminals (…)”

      Indeed.