OLC Restores 4th Amendment after Hounding from Congress
In her post on Steven Bradbury’s October 6, 2008 OLC opinion withdrawing the October 23, 2001 OLC memo eviscerating the 4th Amendment, Christy asks some important questions.
In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”
It’s laugh out loud funny. Or would be if it weren’t for the fact that it took more than 7 years to issue it — during which time the government was still operating under the craptastic legal assumptions, one presumes.
Why was this kept hidden?
I’ve got a pretty good answer why Bradbury’s opinion was kept hidden.
In the exchange between DiFI and Michael Mukasey above–which took place on April 10, 2008–Mukasey equivocated, badly, about whether or not that October 23, 2001 opinion remained in force.
DiFi: Is this memo in force? That the Fourth Amendment does not apply in domestic military.
Mukasey: The principle that the Fourth Amendment does not apply in wartime is not in force.
DiFi: No. The principle that I asked you about? Does it apply to domestic military operations? Is the Fourth Amendment, today, applicable to domestic military operations?
Mukasey: [unclear] don’t know of domestic military operations being carried out today.
DiFi: I’m asking you a question. That’s not the answer. The question is, does it apply?
Mukasey: I’m unaware of any domestic military operations being carried out today.
[back and forth]
Mukasey: The Fourth Amendment applies across the board regardless of whether we’re in wartime or in peacetime.
Mukasey: In my understanding it is not operative.
Well, it turns out it took another six months for Bradbury to withdraw the opinion.
Given Mukasey’s equivocations, I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly). I’d also suggest that, Mukasey knew well of a domestic military operation–DOD’s NSA wiretapping Americans domestically–that was ongoing at the time. And which, until the passage of the FISA Amendment Act, may well have been relying on Yoo’s October 2001 memo for legal cover.
How do you keep up with news dump days? Awaiting V. Walker is making me need more coffee!
News dump days…….not just for Fridays anymore.
The FISA Amendments Act was signed on July 10, 2008 — three months to the day after Mukasey’s exchange with DiFi. Why wait another three months before Bradbury withdrew the Yoo 10/01 memo?
Hmm… Five years after original opinion. Maybe he was waiting for the statute of limitations to run out on the crimes committed by the author of the opinion.
Obviously, I have speed reading induced dyslexia… It’s not five years….
I think it came bc people were trying to declassify it. In fact, I think Pat Leahy demanded they declassify it in August, though in November DOJ responded that they could look but not touch that particular opinion.
EW: Your analysis sounds reasonable.
Had DiFi seen the memos in queston at the time she was interrogting Mukasey?
No. See comment 6–I don’t think even Leahy had seen it in August when he subpoenaed it.
… and that would mean Mukasey was lying … er … we knew that so it would be another case of Mukasey lying to everyone’s face!
More to the prosecutable point, Mukasey would have been lying to Congress.
Unless inside his own head he wasn’t — toward the end of the video clip it almost seems as though he was trying to argue that the question of the 4th Amd. isn’t even reached in his analysis, which might mean he had a secret theory — maybe based on some of the other secret and craptastic OLC memos — under which the CinC-is-Omnipotent stuff takes precedence, legal-analysis-wise, over the Constitution + amd’s. So you don’t have to void the 4th because you never even get to any place in which it would have any application. Maybe that’s what all the “this is not new” stuff follows from — under their way of thinking, necessity of the moment as the Prez decrees it has always been the natural law, the new articulations of the CinC powers being mere clarifications and not actually new findings.
(Gawd, it hurts my head to even begin to try to inhabit that twisted-beyond-recognition thought process.)
Wasn’t DiFi, along with LoverBoy Shumer, one of Mukasey’s backers?
Yes, DiFI’s and Schumer’s yea votes got Mukasey the AG gig.
Just skimming through the Yoo 10/23/2001 memo. There is no way in hell George Bush would have read it. He probably got the abridged version – crapping on the Constitution is permitted.
I wonder what was magical about October 6th? Was it just a case of nerves with the approaching end of BushCo or was there another motivating factor? Just curious. Given your penchant for timelines EW, thought I would ask.
Never mind — just now saw your #6.
I still don’t know why October 8–and why they still refused to release the memo publicly in November.
It may have been an attempt to keep it from Holder. Or hell–from Walker?
But now both of those issues are moot. And they’ve got to release now so as to let Dawn Johnsen start fresh.
Was he read in on the details and legal rationale of warrantless surveillance prior to confirmation? doubt it, probably to keep him from being forced to lie.
but he may have heard enough details to make him pause here…?
Sort of OT, but not really, from a post (by Matt Browner Hamlin, late of the Dodd campaign) which Greenwald links to in his column today on al-Haramin and the Obama admin’s brief asserting that the Preznit’s determination something is classified is final, unreviewable, and unquestionable (even in Court):
It is high time for this bullshit to end. If I had wanted to live under Rethuglican Rule, I would have voted for McCain.
Right. But they’re all relying on shitty reporting of what went on.
The state of things, as I understand it, is that we have not legally gotten beyond the point where Vaughn Walker has told govt to consider what they can declassify and move to get al-Haramain’s lawyers clearance.
That is a matter independent of what Walker rules on the document (and the declarations added on Friday). Yes, the plaintiffs have argued that Walker gets to decide whether they have a “need to know.” And yes, the defendants have claimed that Walker has no say over classification. And then they have said, “now that we’re fessing up to more of the program, please please please don’t declassify it.”
But Walker has not commented on–nor has the Appeals Court ruled on–whether or not he has the ability to require the plaintiffs to get clearance.
All the govt did is say, “well, we lost our appeal, but we will appeal these classification issues that are not yet ripe.
And why the fuck is anyone on our side focusing on that and not on Obama’s late night document dump admitting they had corrected some “inaccuracies”???
Because no one else on our side is nearly so astute as you ; )
I think it’s more – let’s keep EW busy with something she’ll enjoy, and maybe she’ll not have time to think deeply about al-Haramain and what we’ve been hiding.
Quasi-lawyerly OT — The USG filing is captioned “Government Defendants’ Response to Court Orders Concerning Compliance with the January 5 Order and…” Is it common to file responses to orders? Can this be interpreted as a sign that this is so important to DoJ they just don’t care how hard they poke bear Walker?
Greenwald focuses on the arguments the DoJ made in the brief, pretty forcefully, that the Courts have no role in dealing with classified information. I think he’s right in going apeshit over it.
Also, Greenwald’s post went up before this DocDump. AFAIK, this dump of memos was something of a mid-afternoon surprise. I, for one, am left to wonder why they dumped them now, on a snowy Monday, and all I can come up with is they want to dominate the news with these all week.
So, what do they want to hide?
Gutting the mortgage cramdown bill (which is what Ellen Tauscher is working on)?
Covering the expected “bad” decision to come from Walker? Maybe he bluffed them (again), too?
This is a super heavy news day. We have more the state secret cases, these memos, the AIG bailout (its 4th), the stock market falling belowe 7,000 (first time since April 25, 1997), and oil fell $4 today.
He’s right to say it’s a crazy position. He is not right in saying they’re refusing to abide by the 9th’s ruling.
They are going to abide by the 9th’s ruling, which is very narrowyl that Walker reviews the damn document.
No one has started, in earnest, a discussion about what can be declassified. So while they’re being big dicks, they’re doing it rhetorically thus far. They’re not blowing off the 9th C’s ruling.
But, for example, this is clearly wrong, based on bad reporting.
It is not appealing to prevent the court from hearing the lawsuit. It will appeal when Walker says, “These guys have a need to know.”
That’s dramatically different bc it still means Walker gets to make his ruling.
Bit surprised it’s not up yet.
The Village saving their own. This is like Astor and his cronies filling the Titanic lifeboats with gold instead of third-class fare paying passengers. Citizens be damned! Save the Villagers, their lawyers and their pet CongressCritters.
I always wonder what Senators who sit on both Intel and Judiciary bring to bear on their public hearing work from the other (dark) side. Is this an example of DiFi asking questions she knew the answer to because of SSCI briefing, do you think?
geebus .. what dump .. my brain [or what’s left of it] is glazing over .. “coffee ..’strong ..black.. coffee’ ” he cried ..
engine room… slow to one third ahead .. helm.. prepare to come abuot and search for overboarders …
head pops up from dark, deep waters, “HEP, HEP !!”
I put this in Christy’s thread for background.
From my scandals list. Steven Bradbury was probably illegally holding the post of head of the OLC.
Here’s a picture: Bush having to explain ANY of the UE or supreme-CIC stuff legally … like someone putting the memo in front of him and challenging him on the ”law” of the powers that he claimed and exercised.
Makes me think maybe UE and CiC were both (wrongly) conceived as being in play, sort of a belt-and-suspenders approach to conjuring up (from thin air) legal foundations for what they planned to do. The UE part would have been there latent, whereas the CiC part required a wartime footing (AUMF). Permanent Repub Majority (also smoke) would have been the third leg of the stool. (So to speak.)
Man, we so badly need to get back to Congressional declarations of war.
Ah, time to update Tricky Dicky for Dubya: “when the President does what the Vice-President tells him to, that means it’s not illegal.”
Now the world can see twisted logic. Jefferson warned of constitutional usurpation by corporate aristocrats in the lust for endless profit. 911 provided this opportunity. Now with the market below 7000, one might think Bin Lauden is winning the economic war…
Liberty lost is not a funny thing! Banks hold “America’s liquidity” hostage with fiat money, on the taxpayer’s dime initiated by corporate aristocrats, tax exempt not for profit and for profit health care corporations bankrupt Americans while state tax codes now penalizes the uninsured, energy corporations continue to have their interest well protected by US Military in Iraq and the twisted legal opinions which should have been shredded, results in clear violation of constitutional law, and become “justification” for criminal behavior.
Nope!! I guess no “constitutional usurpation” under the color of law here! The real issue is “constitutional constipation,” and a failure to purge and flush….
Was there any single entity which define “domestic military actions?” Someone must have been responsible for reviewing a proposed activity and deciding whether or not it should be classified as such.
AND THE KILLIN’ GOEZ ON AND ON AND…
I am still waitin’ for someone to tell me whether or not we have advanced one inch toward justice and the application of law to the issues of illeagal surveilance and torture and war crimes….those crickets are mighty loud. What we have seen and heard become public today and the last week is nuthin more than formal aknowlegment of what we have known has been goin on for over 5 fuckin’ years…do you believe that with these public admissions the Obama Justice Department will be forced to establish a special prosecutore for war crimes, illegal surveilance and criminal obstruction of justice and, yes, treason? Will there be any legal or political consequences for all this criminality over the last 8 years or will the phrase “rule of law” be exposed once again as a lethal injection to the truth?
KEEP THE FAITH AND PASS THE AMMUNITION, THE BASTARDS ARE STILL IN POWER!!
no doubt the CheneyCo definition of ”domestic military actions” would be any actions involving the military on US soil. there. done. see? it’s really very easy. erg.
exactly: there was no formal declaration of war so they even used the ”wartime footing” without justification. can a marketing phrase (WoT) be a loophole?
it’s amazing how stupid they really are.
and how smart the founding fathers were to have foreseen all of this!
We live in amazing times. Who knew that we would see the worst legal minds ever all now? I would say Yoo, but Addington, Gonzales, Haynes, and Bradbury are all strong contenders.
Then today we have the uneasy juxtaposition of today’s column by Glenzilla re: Is Obama embracing the lawless, omnipotent executive? with
Remarks as Prepared for Delivery by Attorney General Eric Holder at the Jewish Council for Public Affairs Plenum, including:
Most of the speech is devoted to how he intends to accomplish these twin objectives. Of course, wrt the Constitution, he’s thinking Terra! Terra! Terra! and doesn’t mention such cases as Al-Haramain’s.
Perhaps we need to quote this back to Holder and ask WTF?
Bob in HI
Talk about Bradbury trying desparately to recreate himself on his way out the door (oct 6) and as he was manuevering to keep the door from hitting him in the butt on his way out (jan. 15)
How long was he in office before issuing that?
I remember watching him way back when one morning on a c-span program, being thoroughly creeped out by him – he really reminded me of a later day, Uriah Heep.
I got very aggravated at not being able to get through on the call in lines, bc he was sitting there, ingratiatinly talking about how he was looking forward to the honor of having his nomination approved, and at the same time lying through his teeth about the Execs authority under Ex Parte Quirin to disregard the Constitutional protections of the bill of rights in times of war. He was so alternatively smarmy and obsequious, all tempered with mirepresentations and straw, that I just couldn’t take it.
So after his adventures as the once and future, but never affirmed or necessarily legal, acting head of OLC for years, it’s a pretty trite trick for his gainful non-Cheney employment to toss those particular cookies as he’s walking out the door.
Sometimes, I almost feel a little sorry for Yoo.
Sweet yes. Just got started reading Christy’s take on the OLC memos when I was startled by some curious words by Bradbury. Let me set this up by reminding all how Erick Holder, during his confirmation hearing, was supposed to have sold out to Kit Bond, by admitting that there would be no prosecutions for those who acted under cover of legal memos. Bond, and others, ran to the microphones (and their keyboards) to declare safety for the status quo. I pointed out here on this site that what he said was that such immunity from prosecutions would obtain in the case that there were “authoritative legal memos”, and pondered aloud how he would define the term “authoritative”. Well it seems Bradbury, in his 2008 memo may have provided Holder his cue. He wrote about the 2001 memo authored by Gonzales, Haynes, Yoo and Delahunty, that it “should not be treated as authoritative for any purpose”. Perhaps there actually is some sandbagging going on at the DoJ.
So, do you all think that Yoo might be squirming some now that his legal opinions are being flushed away so publically?
I think Yoo was squirming last year, after the release of the Torture Memos. He did an Interview with Esquire – Richardson, son of a CIA officer, drew him out over several days.
He pulled back a lot on those OLC Memos, claiming they were written by Committee. If these documents released today valid, then I think you’ll see that Yoo was lying in his interview with Esquire. He asserts, for example, that the WH were NOT interested in removing domestic Constitutional rights, habeas corpus, etc. because he didn’t view it “as a War”. These documents have him actually arguing the opposite.
And he’s such a shallow thinker, hardly brilliant…for example, he argues that terrorists are more akin to pirates…but ignores that Admiralty Law falls under the Constitution and International standards. And that there was a long history of piracy cases in US Federal Courts.
Yoo comes off as a willing sycophant for any Conservative in power…spinning the law in webs far away from any normal concensus in order to hammer the square peg into a round hole. If anything, and I’ve picked up on this before, he has an opinion that law is for those who have the power to use it. It’s a “survival of the fittest” perspective that applies even to the Constitution…that if a group can take the rights of another then that’s appropriate.
Yes. But not surprising given that the immediate clients were W the CEO President and Dick the CEO Veep and Rummy the CEO SecDef — I mean, no disrespect for any corporate counsel folks who may be reading or commenting here, but I have noticed that xEO types generally have a strong tendency to go to their lawyers with directions to find a way to “make legal” whatever latest awful thing it is that they want to do. Except that when those men got to the WH, the only lawyers they could find who were willing to play that very crappy game with them were (guess what?) very crappy lawyers.
At the end of the day they will just come by and scoop out what’s left of your brains with little spoons cause they’re aliens.
So as usual I’m confused as to the motives of the players. In particular, what would Bradbury’s motivation in late ‘08 / early ‘09 have been for throwing all the craptastic ex-OLC’ers under the bus with the aw-shucks-we-take-it-all-back memos?
tonight on the main cspan channel:
Attorney Gen. Holder Addresses NAAG Annual Conference (8pm)
thats national association of attorney’s general for all the other non lawyers like myself out there .
wonder if ashcroft, gonzales & mukasey will be attending…..
Could he possibly have been more obtuse?
He tried to answer the question about the 2001 memo with an affirmative response about a memo in 2003 – hoping no one would notice.
He’s a fascist. Stop asking questions of these traitors – remove them from office and interrogate them. Get to Rumsfeld, Rove, Feith, Cheny, etc. through Yoo and this dickhead.
I don’t know if anyone has remarked yet on the Memorandum Regarding the President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002) but this is the content of the “floating” summary:
The salient point that I bolded, is that it was the specific intent of the Bush/Cheney “government” to transfer suspected terrorists detained “outside of the United States” to foreign countries for the very purpose of torture!
When Junya was
lying to ustelling us that the US does not torture, he was only trying to hide part of the US Government’s policy.
The other part was that the US does transfer folks to other countries specifically and intentionally for the purposes of torture!.
There is simply no other way to read this memorandum!
As a matter of fact, one can detect a certain wistfulness in the above quoted summary that the US is barred from torturing suspects captured domestically.
I’ve been reading that memo too because transfer of prisoners is an issue here. I agree with your reading — at first I wondered how TPTB fit Maher Arar into that logic, but then I remembered that someone probably considered that Arar had never quite entered the U.S., even though he was apprehended at JFK and wouldn’t have been apprehended anywhere else.
The sophistry is striking. The time spent with Alexander Hamilton is striking. The cloying tone of the courtier is striking. This is very upsetting to read.
Deadeye’s clarion call that “the gloves are off” carried the ultimate in weight, and was heard and obeyed, apparently with enthusiasm, throughout the entire government.
Laws be damned and full speed ahead!
So Rico can be applied?
I think that the entire reason for the inclusion of retroactive “get out of jail free” language on US torture included in the MCA and DTA legislation by the Repugs (of which Senator John McCain and Lindsey Graham were the primary authors) was to prevent that very likelihood of criminal prosecutions of the vast torture conspiracy membership throughout the government.
Lots and lots of Repugs were getting their jollies off on torture, and not because it was intended to produce “intelligence”. They did this stuff because it warmed their black hearts.
And check out the last page. It’s printed as a mobius strip, but the conclusion is maddening:
The memo is signed by Jay Bybee.
You are right. This memo is written as a work-around to the Geneva Convention and the Convention on Torture. Why else would they need it if they weren’t intending for the transferred prisoners to be tortured?
Note that this memo is said to be aimed at prisoners detained in Afghanistan. However, it is clear that this policy was used for people picked up anywhere, such as Mahel Arar.
My comment at 46 merely reflects the summary.
As you point out, the actual document itself goes into far greater detail, and again, emphatically emphasizes that torture is the goal.
Not obtaining intelligence, not gaining “an admission against interests” in a criminal trial, nor even obtaining a confession, but instead torture pure and simple as a means of vengeance.
Black hearts doing black deeds because they like it.
I find this part especially stunning (and I’m hard to stun when it comes to these bozos):
This is the ‘grown-up’ version of sticking your fingers in your ears and saying, “La, La, La, I can here you”
Holy crap! A halfway decent AP article on this memo includes this:
Geez, it’s been so long since AP got something right on this. Byline is Pamela Hess. How much longer will she have a job?
As all of these opinions have been dribbling and leaking out, my take over and over has been “where are the facts?” The opinions always forego the kind of facts review that is a typical and almost requisite part of legal writing. The law can’t really be discussed, absent its application to particularized facts.
The example I’ve given is that it is one thing to say that under facts were there is a house on fire and baby is heard crying, it is ok to break into the house and grab the baby and take it out of the house vs. simply talking generally about there being times when someone might have the power to break into a house and grab a child out of it, with no other context.
Bradbury pretty much admits that at least the 10/23/01 opinion is devoid of a factual application and setting. That pretty much craters good faith reliance – if you didn’t get the opinion issued based on your facts and factual setting, it’s hard to claim reliance.
In his Oct 08 opinion, Bradbury says:
That’s not just true for that opinion, it’s been true of most of them. You could see as soon as a real lawyer got something like the Pentagon torture approvals and started hitting the missing facts – how long, in combination with what, how often, how many techniques at once, etc. etc. etc.
It was clear that there was no factual basis and underpinning for the conclusions. How do you rely on that? You can’t, not in good faith.
Does this translate into “not authoritative”?
What looseheadprop said.
49 – umm, yeah, IMO.
Any idea when we might hear from V. Walker?
Here’s what EFF has to say about these memos.
Do you get the sense all hell is about to break loose over these memos?
After Whitehouse’s speech last Thursday, I sure think so…
That was more focused on torture, wasn’t it? At this rate of discovery, outrage fatigue might kick in before anyone gets to all the 4th Amd. & seizure stuff.
Sorta’ O/T — but sorta’ not:
JUST NOW BREAKING, and sorta’
exciting: Colorado federal District
Court Judge Arguello has just ruled that
Dick Cheney may be deposed — sworn,
under oath, about the events that
led to the arrest of Steven Howards,
in Beaver Creek, CO — when he told
Mr. Cheney that he disagreed with the
Administration’s policies in Iraq, back
on June 16, 2006.
YES!!!! Watch Cheney squirm!
Squirming with Republicans! It is the new Fad!!
Yeah. Though I haven’t checked. I put bmaz on Vaughn watch today, while I wade through Steven Bradbury’s trash. So depending on the ruling, maybe bmaz went straight to the bar.
Actually, I suspect the declarations to fix the “inaccuracy” in the record were fairly detailed. I suspect Walker had his decision pretty well formulated, and then came back from his undisclosed location and discovered he had a bunch of new homework.
We raise a glass in distant salute to you solitary watch. Or something very much like that.
So hypothetically, if Walker had been set to find that the wiretaps of which the super-duper-secret phone log is evidence were illegal, what could possibly be in the “oopsie” declarations that would, or could, cause a re-think of that finding?
I don’t think it would cause him to re-think his finding which smacks down the DOJ, but rather the specific manner in which he smacks them down, or the degree to which he smacks them down.
As I said before, a declaration like this means that the judge has to decide if the folks who filed it are idiots or crooks. If this declaration makes him lean more toward the “crooks” end of the scale, he might be inclined to do some serious revisions to his ruling to make his opinion of the DOJ and the White House crystal clear.
Ah. So if the main thrust of the “oopsie” declarations turns out to be something like “NSA lied to us when they informed us X, and we believed X, so when we alleged X in our Court filings based on such information and belief, we definitely misled the Court, but since we didn’t know at the time that NSA had lied to us, it’s not our fault, and there was no deliberate attempt on our part to mislead, so don’t whack us”… then I guess Walker has to decide whether to believe that or not. Messy.
They would simply argue that wiretapping is NOT a military operation.
Or if it’s “Gonzo and Mukasey were holding our dog hostage,” would that be more the crook side or the idiot side?
Wait, don’t answer.
In the 10/23/01 memo, Yoo and Delahunty channel Malcolm X:
“[Our forces] must be free to use any means necessary to defeat the enemy’s forces even if their efforts might cause collateral damage to United States persons. Although their conduct might [!] be governed by the laws of war, including laws for the protection non-combatants, the Fourth Amendment would no longer apply than if those operations occurred in a foreign theatre of war.”
But come down hard on rebels who push policy changes (hear that teabaggers?):
“Although the terrorists who staged the September 11 incidents operate clandestinely and have not occupied part of our territory, they bear strong resemblance to foreign invaders or domestic rebels. They have come from abroad to launch coordinated attacks of great destructive force… that are designed to change the policies of the federal government.” (p. 27)
Kent State even comes up:
“Further support for our position comes from Scheuer v. Rhodes [a Section 1983 action (civil rights) against Kent State officials for calling in the national guard in which] the Court clearly recognized that the “probable cause” requirement could not be imposed on high ranking executive officials ordering military actions to be taken in situations of civil disorder.“
Those aren’t the only “60’s” Yoo and Delahunty are eager to return to as many of the justifications, such as those regarding the supposed irrelevance of citizenship come from post civil war cases:
“Miller (1870) establishes that certain constitutional rights don’t apply to the enemy and that even United States citizenship may not negate the possibility that one may have the legal status of an enemy.” (p. 33)
Yoo was auditioning for a role he knew they wanted to fill, creating the means to justify the ends. It’s stunning, and they’re just getting started.
Thanks from Kiwi for all the good work here on this.
Off the topic, but to those who have been so kind since her passing, Marie’s legacy donation to Covenant House in Hollywood went through today. 81000 for the kids there who are in need. In these times thats a good sum to leave. Love and promises of better times and good wishes to all. Dennis.