Where Are the Other Memos?

As we’ve been discussing, DOJ released nine previously unreleased OLC memos yesterday, two of which were Steven Bradbury memos basically saying, "oops, no harm no foul!!"

But they’ve still just released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury’s two "no harm no foul" opinions). Where are the other memos? Why weren’t they released yesterday? Is it because they’re still active (and supporting torture and illegal wiretapping and whatnot??)

The question is especially pertinent given a few things Bradbury said in his January 15, 2008 "no harm no foul" opinion.

The Commander in Chief Is Only Sort Of Bound By the Law

To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.

The federal prohibition on torture … is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President’s Commander in Chief authority.


The President, like all officers of the Government, is not above the law. 

He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says, 

We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.

To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.

To the file earlier this year: … unless "applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II."


We Remain Noncommittal about the President’s Authority to Suspend Treaties

And then, in his discussion about whether or not the President is above the law, Bradbury cited a 2007 OLC memo (which we didn’t get yesterday), to say that OLC had not yet weighed in on whether the President can suspend treaties.

The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from Congress, the text, or background law. The White House did not directly ask that question … and we did not purport to resolve it.

The Loopholes Remaining and the Outstanding Memos

Now, I consider these Bradbury comments very troubling given the memos that DOJ did not turn over.

For example, there are a series of memos from late 2001 and early 2002 that address the Geneva Conventions, OLC/DOJ/AG/State authority to "interpret" treaties, and possible "interpretations" of Article 3 of the Geneva Convention. Plus, there’s one from July 2002 and two from late 2003 on the "applicability" of the Convention Against Torture and the Geneva Conventions. So while Bradbury’s public opinions suggest OLC has never ruled on whether or not the President can suspend treaties, it’s clear that DOJ is still hiding a great deal of discussion about how the President can "interpret" treaties and decide whether treaties are "applicable." And, of course, there’s a giant loophole still in place regarding the question that–per Steven Bradbury–OLC has not "resolved."

But there’s another, more pressing reason why I’m disturbed about what we got and what Steven Bradbury said in his 2009 "no harm no foul" memo. 

In that memo, he reproduced a statement that he–Steven Bradbury–made to Teddy Kennedy at a time when he was angling for a promotion to head OLC, which made it seem that he–Steven Bradbury–absolutely believed the President had to abide by Congressional laws prohibiting torture. Then, in his memo from this January, he seems to dramatically limit the statement he made publicly to Kennedy–as much as saying the President is not above the law unless laws have been passed to "frustrate the President’s ability to fulfill his essential duties." The "Presidential frustration" loophole (as I’ll call it) is enough to raise some concerns. 

But even more so when you consider two of the other memos that have not been turned over–Steven Bradbury’s own March 2005 memos, memos he wrote as an audition to try to convince David Addington he’s make a good head of OLC. The memos have been reported as re-authorizing the torture approach that Jack Goldsmith had withdrawn in 2004.

In other words, the memos released yesterday do as much to point to the loopholes that they’ve exploited to be able to keep torturing as they reveal any big reversal from those policies.

179 replies
  1. JimWhite says:

    Those others should be quite interesting. From the LATimes:

    The October 2001 memo “gave rise to the Justice Department discussing with the Defense Department whether the military could be used to arrest people and detain people inside the United States,” a former Bush administration lawyer said. “That was considered but rejected on at least one occasion.”

    The officials asked not to be named because the debate over using the military to detain people inside the U.S. was secret.

    Under the proposal, the suspects would have been held by the military as “enemy combatants.” The proposal was opposed by the Justice Department’s criminal division and other government lawyers and was ultimately rejected, and the suspects were arrested under criminal statutes, the lawyer said.

    The memos released Monday are “just the tip of the iceberg” in terms of what the Bush administration authorized, the lawyer said.

    Emphasis added.
    I wonder who their source is on that line?

    • ApacheTrout says:

      Excellent catch, Jim. I suspect that we’ll be learning more about a number of criminal cases that were initially under the “domestic military operations” umbrella and then shifted to the standard criminal justice system. Which, as I type this, makes me wonder a bit about the selection of Michael Mukasey as AG, who was the sitting U.S. District Court judge on the Padilla case. Did he learn something during this trial that made him such an treasonous ideal Bushbot for AG?

      • emptywheel says:

        Well, that’s effectively what al-Haramain is all about. That memo was used–by Bradbury’s own admission–to authorize the warrantless wiretap program.

        • ApacheTrout says:

          I’m so steaming mad today. I’ve called Senator Leahy and demanded that the kind Senator move on from issuing boldly worded letters and step into the arena of hauling these people into jail for subverting the Constitution and effectively suspending the Bill of Rights.

  2. perris says:

    To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.

    To the file earlier this year: … unless “applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.”


    so what they’ve said is thus;

    “the president is not above the law!

    law provides the president can do whatever he wants to do”


  3. Jkat says:

    what did pogo say: “we have met the enemy abd he is us ” …

    the more i read this stuff the more i wonder where this bunch of reprobates were hiding when the rest of us were being grounded in fundamental civics ..

    thanks EW .. you’re a wonder on this stuff ..

  4. MaryCh says:

    I’m sure the 41 administration wasn’t the first to abuse/politicize the OLC, but is there any other admin’s OLC that even registers on a scale of 1 to ‘provide cover for whatever Cheney decides he wants to do’?

  5. phred says:

    EW, do we know why so few memos were released yesterday? Was there a statement made about what was released and what was not or did they just not go there? Can we expect to see the rest any time soon? Also, given the dramatic assertions of power in those released yesterday, it really begs the question of what the heck is in the memos that haven’t been released…

    • emptywheel says:

      I don’t know but I haven’t read the coverage on it so far. I have two guesses: this work came out of Steven Bradbury’s attempt to prevent the OPR from filing a complaint about him. And this is Steven Bradbury’s effort to stay employed (bc David Addington needs his sleeper agent, don’t you know?).

      And I suspect they’ve been released in house-cleaning to make way for Dawn Johnsen to do even further house cleaning.

      • phred says:

        What is the likelihood of Bradbury’s continued employment once Johnsen shows up? I would hope that it’s very very slim. Either way, would it be safe to assume that now that Bradbury has gussied things up for OPR that we won’t see any more until Dawn Johnsen arrives? That would be a shame — although it might give you time to do your taxes ; )

    • acquarius74 says:

      I haven’t read all these comments, so please forgive if this is already posted. Here is the ACLU webside and their clickable menu is given below.


      > OLC Memos Released by the Government (Mar. 2, 2009)
      > Obama Executive Order on FOIA (Jan. 21, 2009)
      > ACLU Letter to OLC (Jan. 28, 2009)
      > ACLU Chart of Known OLC Memos (Jan. 28, 2009)
      > Web Feature: The Missing Memos (ProPublica)
      > Video: ACLU’s Jameel Jaffer Discusses Secret Government Memos (YouTube)
      > Administration Of Torture: ACLU Book on the Torture Documents

  6. bmaz says:

    Marcy, where in this does the terrorist apartment building bit fit? A still hidden opinion of one that was released?

    • emptywheel says:

      The apartment building one is this one. Turns out it eviscerated BOTH the 4th and the 1st Amednment, in 37 pages or less.

      I’m working on that one. Things are piling up and now I’ll never find my receipts for taxes.

      • Synoia says:

        “theaters of military action have been located primarily abroad”

        No Yoo. Monroe doctrine & the Native Americans. French & Indian Wars, War of Independence & War of 1812. All clearly provide precedence for applicability of the constitution in wartime (except French & Indian wars).

        “Belligerent parties are typically nation states”

        No Yoo. Monroe doctrine & the Native Americans. And as US common law is descended from British Common law, British Common Law has much precedence on fighting against non-nation states, both in the UK & around the world.

        No Yoo. You cannot conflate “domestic violence with war” and bypass the PCA to use the military in the US from terrorist acts, becuase Yoo are inferring that all domestic violence is war, which is not true.

        4th Amendment, “prosecute a war against theenemy”…

        No Yoo. Where’s the declaration of war? no declaration of war, no war, so this argument is also basd on false asssertions.

        And I’m tired of this. Yoo are an idiot, Yoo.

        • emptywheel says:

          He also left out Pearl Harbor. Because apparently Pearl Harbor is not US soil.

          Must be the whole Hawaii thing that gets Obama disqualified from being President.

          • dakine01 says:

            And once again he would be wrong as Pearl Harbor and Hawaii were US Territories up until Hawaii became the 50th state in 1960, one year before Obama was born.

            But you knew that even if Yoo didn’t know that.

  7. perris says:

    think progress has this already;

    In perhaps the most surprising assertion, the Oct. 23, 2001, memo suggested the president could even suspend press freedoms if he concluded it was necessary to wage the war on terror. “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Yoo wrote in the memo entitled “Authority for Use of Military Force to Combat Terrorist Activity Within the United States.”

    yoo is clearly a sociopath

    read that like so;

    “if you want to lie us into a war you can undermine the fourth estate so they don’t let the cat out of the bag”

    • sojourner says:

      I was rather fascinated with that particular memo… My undergraduate degree was in Journalism, and even though I have never worked in the field, per se, I have followed journalistic activities pretty closely.

      Even before 9/11, Bush et al had pretty much muzzled/sedated/paid off the media so that their actions would not be looked at too closely. Marcy had some prior discussions about this a couple of years ago. But I have to wonder if this particular memo had an even more chilling effect just from its mere existence. For instance, if word got passed somehow that a memo such as this existed — but that it was “secret” — and the media dared in any way shape or form to get out of line, I am sure that editors, publishers, networks, and others in the news business quickly began to look the other way to the abuses that began to happen. By making sure that it was a known “secret,” no one — but NO ONE — would dare to talk openly about it. It also provided an ideal sledge hammer to stop ANY reporting about ANY real administration activities until more recently.

      This is just an opinion, but in recent years it seems the Republicans have done their level best to minimize the media anyway, screaming about liberal bias whenever something got reported that they did not like. Nixon did his level best to stop information leaks through the use of “plumbers.” Maybe all politicians are averse to ANY light being shone on what they do.

      Think about it… If you had Karl Rove and Dick Cheney promising to take you out of business if you did something they did not like, I guess a lot of media people tiptoed very gently. A very sad time for our country!

  8. phred says:

    By the way, does anyone else think of a frustrated W as a spoiled child in the candy aisle at the grocery store demanding to get whatever he wants? We need to send everyone in the Executive branch to parenting classes to learn how to properly cope with such behavior.

    • ApacheTrout says:

      What made Bush so dangerous is that he was embarrassed by 9/11 and his actions on that day. He is a bully who was caught with his pants down and determined to extract his revenge regardless of the rule of law. I wouldn’t be surprised if he fancied himself as a vigilante, hoping to shoot first and maybe ask questions later, if he should be so bothered.

      • phred says:

        You really think so? I don’t think he has ever taken any personal responsibility for 9/11. Cheney was gunning for a Unitary Executive long before that. Bush has always seemed to me to be a spoiled frat boy without any capability whatsoever for introspection. I think you’re giving him way too much credit. Otherwise, the motto of their administration would not have been “who could have ever imagined”.

    • perris says:

      here’s a transcript

      The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants.

      That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency.

      The opinions reflected a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.

  9. Mary says:

    1 – “The officials asked not to be named because the debate over using the military to detain people inside the U.S. was secret.”

    What? Like the Padilla and al-Marri case are secret?

  10. Mary says:

    I guess we were all snoozing when Obama adopted Bradbury’s “unless the law frustrates the President” footnote to the “no one is above the law”

  11. Mary says:

    So, I guess one reason for the delay in releasing was to give Bradbury through January to finish writing …

  12. perris says:


    the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.

    actually they were already doing it before 9/11 but the attack gave them what they thought would be acceptable legal footing

    never the less, yahoo does a pretty good job;

    The memos reflected a belief within the Bush administration that the president had broad powers that could not be checked by Congress or the courts

  13. GregOPauls says:

    I guess that no one here remember how they felt on September 11, 2001. Had any of you lost loved ones then, illegal wire taps to bring those bad people to justice would have been ok. But how we easily forget how our country was attacked by terrorist and now focus on alleged illegal wire taps. Wake up and sell whatever, let’s focus on what matters to this country and it’s peoples safety. The presidents do what they have to do to protect you, and this is the thanks they get.

    • perris says:

      I guess you didn’t know this but wiretaps ARE legal before you get the warrant

      all you had to do was at some point in time demonstrate why you thought you could get information

      that’s called fisa

      the ONLY reason not to get warrants is if you want to steal, all a warrant does is prevent criminals who use the cover of office from stealing

      I do NOT want an official using the cover of their office stealing my information

      a judge MUST look at the information gathered (even if done after the search) and prevent that theft

    • emptywheel says:

      You mean like the guy who lived across the hall from me in college who was on Flight 11?

      Greg. It’s nice having a troll and all, but when you make ignorant comments like–assuming shit you simply don’t know–then you really go beyond the pale.
      You obviously don’t know shit about how I responded when a friend died in the attack. But i can tell you I did not abdicate my role as citizen.

    • sojourner says:

      The trouble is, there is a right way to do things, and a wrong way to do them. Bush had legal means to do most of what he wanted to do — he just did not want to be bothered to do it legally. He used the terrorism as a means to open the door to abusive activities — including conducting his own form of terrorism on the American public. If you think about it, the way he and his administration did things puts us right down on the same level as those we wanted to capture and prosecute. We tortured when it really was not necessary.

      I know many people who were more afraid of Bush / Cheney / Rove than they were of “the terrorists.”

      • perris says:

        The trouble is, there is a right way to do things, and a wrong way to do them. Bush had legal means to do most of what he wanted to do — he just did not want to be bothered to do it legally

        that’s kind

        the reason he didn’t want to do it legally was because there was information they wanted to steal

    • bmaz says:

      Hey GOP, and that is exactly what the fuck you are apparently, where the hell do you get off telling me how I felt, or should have felt, after 9/11. You don’t know your rear from a hole in the ground about me or anybody else here, don’t ever presume you do. Secondly please move your pitiful carcass to some other country since you clearly don’t understand or give a damn about the foundation and ethos of this one. Are you so ignorant and self serving as to believe that somebody you knew, or might have wanted to know but didn’t, in the WTC or a Pennsylvania field is more important than the millions of lives dutifully given by American servicemen since the founding of the country to protect the very Constitution you so eagerly are willing to abandon at the drop of a 9/11 hat?

      Never mind answering; it is a rhetorical question.

      • phred says:

        GOP! (Banging head on desk) I didn’t even notice. I’ve been reading it as GregApalls. My bad.

  14. Valtin says:

    The other memos? This partial release is consistent with the strategy of the “limited hangout.” The same thing goes for the “92″ tapes destroyed by the CIA, when we know hundreds of tapes were made, and not just by the CIA, but by DoD (and contractors?).

    But as regards treaties, I gave a lengthy discussion of administration contentions around, at least, the UN Convention Against Torture treaty in my two-part series, On the U.S. Duty to Prosecute War Crimes.

    Whenever we get to see the relevant memos, it may carry the heavy stamp (once again) of John Yoo. Yoo published last year a huge monograph article on treaties, which is available on-line to read. As we shall see, Yoo is not unaware of the arguments arguing essentially for his head. While his arguments for the unitary executive and for torture are specious, he is sophisticated, and way ahead of many who would oppose him. This is not to argue in his defense, or that of the other Bush attorneys, but to sharpen our own understanding of the relevant issues.

    Entitled Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, the following is from the article’s abstract:

    This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation. It examines the relationship between the treaty power and the legislative power during the colonial, revolutionary, Framing, and early national periods to reconstruct the Framers’ understandings. It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution’s creation of a national legislature that could independently execute treaty obligations. The Framers also anticipated that Congress’s control over treaty implementation through legislation would constitute an important check on the executive branch’s power in foreign affairs.

    Those looking for a simplistic adumbration of the unitary executive will be disappointed, and also miss some of the sophisticated, many-headed approach of the neocons attack on the Constitution. In this case, Yoo is mainly arguing against (in my opinion) the UN Convention Against Torture, where the “self-execution” reservation made by the Senate is the backbone of conservatives’ contention now that there is no legal mandate to prosecute for violation of the treaty, i.e., the way in which the U.S. proceeds is via the implementing legislation for the treaty, not per the treaty itself, and if there is no implementing legislation for the treaty on a particular point, then there is no way to enforce the treaty!

    This is a silly and dangerous doctrine, undermining the Supremacy Clause of the Constitution. It arose in part in the SCOTUS decision on Medillin v Texas, which I discussed in an article last month:

    How strange that Yoo argues here for a check on the executive branch, he who has argued elsewhere for a powerful executive with massive wartime powers. But not strange when you realize that all these legal opinions are meant to cynically promote a particular political agenda in which U.S. foreign policy is free of international constraints. If in the case of treaty law this means eviscerating the executive’s power to enforce the law of the land, so be it, all the better to eliminate the constraints of international law upon mighty America.

    As to Yoo’s contention that “Congress’s control over treaty implementation through legislation” was important issue for the Framers, Breyer references Ware v. Hylton (1796) (emphases in original):

    The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically, Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically….

    Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were “executed,” taking effect automatically upon ratification. 3 Dall., at 272. Other provisions were “executory,” in the sense that they were “to be carried into execution” by each signatory nation “in the manner which the Constitution of that nation prescribes.” Ibid. Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274–277.

    But, Justice Iredell adds, after the Constitution’s adoption, while further parliamentary action remained necessary in Britain (where the “practice” of the need for an “act of parliament” in respect to “any thing of a legislative nature” had “been constantly observed,” id., at 275–276),further legislative action in respect to the treaty’s debt-collection provision was no longer necessary in the United States. Id., at 276–277. (Dissent, p. 6)

    • phred says:

      Valtin, you are clearly better versed in such things than I, but I thought that Congress had to ratify treaties. If that’s the case, then Yoo’s argument goes right out the window. Am I mistaken about that?

      • Valtin says:

        Article II, Section 2 of the Constitution: [The President] “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”

        The Senate ratifies and the treaty becomes the “law of the land.” What Yoo is referring to is the question of the enforceability of treaties, especially those that have been labeled by the Senate, as a condition of passing the treaty, non-self-executable. That is, the treaty requires domestic federal legislation to make it enforceable.

        That was the case with the U.S. ratification of the UNCAT treaty, and one can read the “Relevant Declarations, Reservations, and Understandings” to that treaty at this link.

        Of course, the amount of reservations can be used to subvert the actual meaning or intent of the treaty, as I think happened with CAT. Also, what do you do if a portion of the treaty does not gets its implementing legislation, is it the law of the land? The whole subject can get very intricate and is the subject of ongoing legal debate. My point is that it is an extreme version of this debate, and one that may have the majority or near-majority of the SCOTUS on its side presently, that is behind the attempt to hide war crimes behind a unique way of representing treaties. This attempt is not consistent with the idea of a unitary executive; it has other historical ideological roots, and in any case is used, IMHO, cynically in a use-any-argument-at-hand approach to enforce whatever policy is desired by the executive and the powers the executive serves.

        • cinnamonape says:

          If treaties become the law of the land it is the responsibility of the Executive to execute that treaty to the BEST of his abilities. He annot suspend subvert, refuse to follow, or otherwise derail that law. Of course, the one exception might be if by Execurtive Order, he opts to decalre some aspect of that law contrary to the Constitution in some other place. For example, he could declare, in Yoo-like fashion, that it encumbered his ability to act as CiC during a “time of war”. This would, presumably allow the President to void any law, treaty or other Constitutional clause since a CiC “obviously” needs the unfettered application of power to “win wars”. All the Constitutional protections could be erased under this interpretation. But clearly that wasn’t the intent of the Framers who specified precise circumstances of war (insurrection and invasion) in which a President could even suspend one freedom (that of habeas corpus). Milligan delimited that “power” to areas where Courts were not capable of functioning, areas of actual conflict or insurrection.

          One could easily argue that a President suspending an aspect of a Treaty, without consent of Congress, was not only unConstitutional, but an act of War.

          • 4jkb4ia says:

            But it seems to be settled law that the President can cancel a treaty, especially if the other side broke it or it is practically no treaty. The footnote showed Carter unilaterally breaking a treaty with Taiwan.

            Thank you, Mary.

          • Valtin says:

            I certainly agree. Please… dear readers… do not mistake the messenger for the message. I’m only alerting our more legal minded folks to some lesser-known Yoo writings, which may be relevant for our purposes.

    • bobschacht says:

      This partial release is consistent with the strategy of the “limited hangout.”

      So, does this mean we must soon expect the modified limited hangout?

      Incidently, I’m one of those who is glad to see you in these comments.

      Bob in HI

      • Valtin says:

        Hi Bob, yes, I always enjoy coming here. As for limited hangouts, they are something like Zeno’s arrow. You keep thinking you are getting closer to the truth, but it keeps receding in an egress of infinite approach.

  15. Mary says:

    9 – obviously killing the babies successfully is waaaaaaaaaaaay more important than discussing whether the babies should be killed.

    24 – I remember how I felt on 9/11, and also on learning that Bush and Rice were briefed and battered with more briefings and Bush decided this is what he was going to do to protect the nation.

    I remember watching the limbless return from Iraq, where they were sent for Bush’s vanity while Bush abandoned the hunt for Bin Laden to focus on a goal he held since before 9/11 and I watched him “sell” the war as having something to do with 9/11 when it did not – I watched him lie about mobile weapons labs (when is that crap going to get declassified anyway) and put his biking session above the economic crisis he was creating and the needs of the soldiers in his vanity war.

    Where were you?

  16. Mary says:

    14 – I think they were written and released (the two Bradbury’s) to try to do an end run around anyone after coming in and undoing the previous memos in a more thorough and less “be kind to depraved torturers” way.

      • Valtin says:

        The strategy of drip drip drip release is calculated to fatigue the public. By the time of the fourth or fifth “release” of documents, the headlines will have retreated to the back pages, or to the blogosphere, where they hope it spins around and out, like much of the secrets that have come out over the past eight years… lost in a miasma of revelations and crimes too great to be comprehended, and considered to “political” to be pursued by the ruling governmental elites.

        Such is the pessimism brewed in me over the past decade.

        • lennonist says:

          “the headlines will have retreated to the back pages.”

          These headlines were already in the back pages of my city’s paper. The front page featured a plea for donations to fly a dog home to his family after his owner died while driving through. There were also a couple crime stories akin to “two minutes of hate.” Since I read the memos before bed last night, I ended the day reading how Orwell envisioned the “inner party” would think and woke up to read what the “proles” are fed. I feared the memos had been sent “down the memory hole” until I found them on the back page.

          And it seems to be working, at least on some: “War is Peace; Freedom is Slavery; Ignorance is Strength,” isn’t far from “illegal wire taps to bring those bad people to justice would have been ok.” It’s “newspeak” or “blackwhite.”

          Actually, this view is closer to Orwell’s “all pigs are equal but some are more equal than others.” That’s also not a bad summary of the way Yoo (and later Bradbury) viewed the role of the executive in relation to the other branches during (perpetual) war. The decider assumes temporary power over the law until he decides it’s safe to give it back. In short, “presidents [have the unwritten Constitutional authority to] do what they have to do to protect [us].”

        • Loo Hoo. says:

          The strategy of drip drip drip release is calculated to fatigue the public.

          Or maybe it’s designed so the public has time to absorb the memos. ??

          • PJEvans says:

            Designed to get the news media to say ‘Oh. More birdcage liner.’ and toss the announcements.
            While those who should find out, never hear about it. (Unless they hang out in places like this!)

  17. GregOPauls says:

    missing the point, wire taps are a small issue in today’s society. Fighting terror and the economy should be the focus, with constructive criticism not foul language.
    If we all remembered how angry we were that day and how we would do almost anything to get the bad guys, this country would be a better place.
    Let’s come up wit ideas on what we can do going forward constructively.

    • perris says:

      missing the point, wire taps are a small issue in today’s society. Fighting terror and the economy should be the focus,

      which is why you don’t let terrorists when and destroy our constitution

      and you don’t let sociopaths steal your information

      unless of course you WANT the government listening to you and your wife, looking up the dress of your daughter and following your son

      unless of course you WANT someome making believe they are need information for security when in fact they want to steal your method for making engines more efficient

      unless of course you DON’T want someone making sure they aren’t using the cover of their office to steal from you and your family

      but of course, according to you, all that’s fine

      according to patriots of this nation, it is clearly NOT

    • BoxTurtle says:

      Let’s come up wit ideas on what we can do going forward constructively.

      Unh, we are. First, check out the topic…this is not a discussion about the economy. We do have those, but this is not one of them.

      Nor is the subject fighting terror, no matter how much you might like to be.

      This discussion is about possible illegal acts by our government. About perjury committed by our goverment. About obstruction of justice by our government. About war crimes by our government. There’s more to the constitution than the 2nd amendment.

      Where the fsck is freep? Slacking, no doubt!

      Boxturtle (Bad Boxturtle! Do not feed troll)

      Boxturtle (BAD Boxturtle. Do not feed the troll.

    • perris says:

      Let’s come up wit ideas on what we can do going forward constructively.

      the most important thing we can do is bring criminals and traitors to the bar of justice

      those people who used our government for their own personal pleasure must be held to account so it does not happen again and those who defend them need to be disabused from the notion that our constitution is to be ignored

      • JamesJoyce says:

        I propose a “Gliewitz Argument,” when calling for war crimes trials. The world might never have known of the Nazi’s fabricated “Polish” attack against the Gliewitz radio installation, in the absence of trials. These “memos” show anything is possible when initiating war on lies…..

    • ApacheTrout says:

      now, now everyone. Please go kind on Mr. G. here, as he’s only demonstrating the common knowledge that there’s only one kind of patriot, and when you’re that kinda patriot, well, laws are just for pussy footers, worry warts, and hand-wringers. I suspect that an ancestor of his heckled the framers of the Constitution as elitist no-nothins who were wasting time writin’ laws instead of building muscles to kick British ass when they came back, as everyone back then knew they would. So it’s in his blood. And remember, that kind of blood runs patriot red white and blue.

  18. klynn says:

    For some, commenting at the TCPalm: Florida’s Treasure Coast And Palm Beaches about supporting McCain, might be a “best” choice.

  19. brendanx says:

    Hey, Yoo footnotes Lewis Libby on p. 2:

    Lewis Libby, Legal Authority for a Domestic Military Role in Homeland Defense, inthe New Terror: Facing the Threat of Biological and Chemical Weapons

  20. Mary says:

    Ah, yes, if only we could summon up a constant state of rage-despair-fear-anger, that would help us make all the right decisions.

    Defending the Constitution IS what we can do to move forward constructively. If you don’t appreciate the lives that have been sacrificed for that proposition, then you are a lost soul.

  21. klynn says:

    Had any of you lost loved ones then,

    I’ll take foul language over the “foul assumption” that anyone commenting here did not experience the loss of family that day. That assumption is an act of rudeness with a depth way beyond foul mouthiness.

    Disgraceful, hurtful and not constructive. GOP from FL. Ann C by chance?

  22. jonL says:

    Alot of you went to law school. How many of you would have passed con law wrting this kind of crap and gave it to the prof to grade?

    Can we file bar complaints agaist these idiots for moral turpitude, unethical behavior and fraud?

  23. klynn says:

    Hey EW,

    I am right. Every time you have done your homework…We get a flood of “em”…Keep thinking and posting. And we need to keep digging and spotlighting!



  24. KestrelBrighteyes says:

    Okay, IANAL, so I have to ask – does issuing a legal opinion that basically says the President can declare the Bill of Rights null and void, and there’s nothing anyone can do to stop him, fall under the legal definition of treason?

    (And how long before we get to see Yoo disbarred?)

      • KestrelBrighteyes says:

        On thinking that through.. perhaps it would fall under “sedition”, not treason?

        That doesn’t really fit either.

        I would think it certainly falls under Civil Rights laws..but then..

        Okay, back to reading and learning.

  25. GregOPauls says:

    all very wonderful responses. I understand not having the gov up my butt, but during that time frame it was necessary for your and my protection. If no wire taps were found everyone would as why they did not know who was behind all it. Catch 22, try to do something good for the nation only to have opinions change years later that view it as bad. Beheading were common place years ago should we condemn those people now.

    • dakine01 says:

      With all due respect but how is spying and wiretapping US citizens protecting us from “terror?”

      It was real police work that allowed FBI agents in multiple field offices to identify that there was a problem with flight schools (which no one at Headquarters could be bothered to investigate).

      It was normal intelligence channels and procedures that allowed Richard Clarke to brief Condi Rice that Al-Qaeda was going to attempt an attack inside the US which she ignored.

      It was standard Presidential Daily Briefing by the CIA that “Al_Qaeda determined to attack inside US” that prompted Bush to say “OK, you’ve covered your ass now.”

      It wasn’t spying on US Citizens inside the US that allowed Bush to screw-up and allow the worst terrorist attack to occur on his watch. It was the failure of he and his administration to heed the warnings of others that allowed the attack to occur.

      The attacks that were then used as an excuse to spy on anyone in the US at any time against the Constitution that he and everyone else in the administration had sworn an oath to uphold.

      Oath-breakers I call them and oath-breakers they are.

  26. Mary says:

    52 – and the biggie – the Civil War, which gave us the nuts and bolts case, Milligan. The Sup Ct has already held that even where we are at war on our own soil, military law supercedes civilian law only on “the battlefield” and despite Holder, Kagan and Graham’s song and dance about the battlefield being everywhere, the court was pretty specific. Where civilian courts are open and operating – that place is not “the battlefield” and the Bill of Rights and Constitution reign.

    The memo’s really hung their hats on a premise that originated from a belief that they could just get “their court” to overrule Milligan. To see Scalia instead embrace Milligan and make noises about being willing to overrule Quirin has to have caused twitches.

    These cases are so important that it really did rock me to see both Holder and Kagan bite on Graham’s bait, as if they either also believe in trying to get Milligan overruled or they were just clueless on the impact of their statements.

    • dakine01 says:

      …they were just clueless on the impact of their statements.

      Cluelessness and stupidity are my default belief for why things happen rather than any type of coordinated conspiracy.

    • phred says:

      Mary you are an amazing resource. Either my defective memory has kicked in again or this is the first I’ve heard about Milligan. Would you care to elaborate on your comment with respect to both Scalia embracing it (and for that matter, what is Quirin?) and also where and when Holder, Kagan, and Graham were singing and dancing about us all being on a battlefield now? Thanks!

      • bmaz says:

        Phred, if you would quit flying off to exotic places in your private jet, you would have seen months of discussions with me and Mary on this!

        • phred says:

          Damn damn damn — that’s it, I’m quitting the day job! Just kidding — I really like the day job ; ) What can I say, I’m a sucker for exotic (or is that quixotic ; ) pursuits ; )

  27. Mary says:

    61 -”it was necessary for your and my protection”

    And you know this … how? Because Bush who lied over and over told you so?

    Notice Bin Laden was never caught – adding more haystacks doesn’t help you find the needle.

  28. GregOPauls says:

    what about all of the terror attacks that clinton allowed. Clinton was the one who let the first wtc attack go unpunished or investigated, clinton was the one who let the USS Cole attack go unpunished or investigated, clinton who let the attacks on the barracks go unpunished or investigated. Clinton was the one who let the terrorist into the country, wire taps were trying to identify them.

    • macaquerman says:

      Saving American lives is important, but unless you undertand that the government is supposed to uphold the Constitution and until you educate yourself as to the extent to which the government violated that oath, your arguments won’t serve yourself or America.

    • emptywheel says:


      With all due respect, you owe someone a real berating for your astoundingly bad grasp of historical facts.

      You do know, for example, that people remain in jail for the WTC bombing, right?

      You do know, for example, that Bush was handed the details on Cole (Clinton didn’t want to do what Eisenhower and Poppy did and start a war for his successor) and Bush promptly ignored it.

    • Jkat says:

      your an ass GOP .. we convicted the people responsible for the ‘93 WTC attack .. they are in prison now

      and yemen sentenced two men to death ..and imprisoned others in the USS Cole attack ..

      just because you’re ignorant of the facts .. doesn’t mean you have a point ..

      begone oh forked-tongue serpent of the right …

    • dakine01 says:

      Oh. My. You mean the First WTC attack where there WAS an investigation:

      The attack was planned by a group of conspirators including Ramzi Yousef, Mahmud Abouhalima, Mohammad Salameh, Nidal Ayyad, Abdul Rahman Yasin and Ahmad Ajaj. They received financing from Khaled Shaikh Mohammed, Yousef’s uncle. In March 1994, four men were convicted of carrying out the bombing: Abouhalima, Ajaj, Ayyad and Salameh. The charges included conspiracy, explosive destruction of property and interstate transportation of explosives. And in November 1997, two more were convicted: Yousef, the mastermind behind the bombings, and Eyad Ismoil, who drove the truck carrying the bomb.

      . That First attack?

      Or was that the USS Cole attack that happened at the end of his administration (less than a month before the Y2K election) that the Bush admin failed to investigate at all after they took office? That USS Cole attack?

      Which barracks attack did Clinton let go unpunished? The Marines in Lebanon that were attacked in 1983 during the first Reagan administration.

      The existing FISA laws were sufficient to identify and track the 9/11 plotters in the country. It was no longer the Clinton admin and hadn’t been when the attack occurred and the intercepted conversations (legally taped) were translated.

      • emptywheel says:

        Hey didn’t Saint Ronnie withdraw from Lebanon after we were attacked there, rather than doing an investigation?!?!?!

        A true brave hero, that Ronnie.

    • cinnamonape says:

      Clinton was the one who let the terrorist into the country, wire taps were trying to identify them.

      What a dope! Almost all of these guys came in after George Bush entered the White House. Atta entered the US after an Al Qaeda “summit” in Spain on July 19, 2001 as did pilot Marwan al-Shehhi. Pilot Khalid al-Midhar also entered the US on July 2001; Ziad Jarreh was actually abroad and interviewed by the CIA in the UAE on January 29th, 2001, returning to the US afterwards. Atta and al-Shehhi actually were approved by the INS for student visas July 17th and August 9th, 2001 respectively. Only Hani Hamjer (arriving December 2000) and Nawaf al-Hamzi were actually in the US during the Clinton era and remained there until 9/11. All 17 of the remaining terrorists were outside the US and only entered (or re-entered) after Bush became President most in July and August of 2001. This was precisely the point when the CIA warned Condi Rice of the high probability (10 out of 10 acc. to Cofer Black) of a terrorist attack using hijacked civilian aircraft on a US building target. In August the Mossad provided the CIA with a list of al Qaida terrorists training for such an attack.The “pilots” Hamzi, Atta, al Midhar and al-Shehhi were on that list.

      So much for Clinton allowing the terrorists in on his watch.

  29. JimWhite says:

    Ramzi Yousef, the convicted mastermind of the 1993 bombing at New York’s World Trade Center, was to be sentenced Thursday and could receive a maximum term of life in prison without parole. The attack killed six people and injured more than 1,000.

    After three days of deliberation in November, a federal jury convicted Yousef and Eyad Ismoil on murder and conspiracy charges for their roles in a plot by Islamic extremists to topple the trade center’s two 110-story towers to punish the United States for its support of Israel.


    • Valtin says:

      Yes, why bother with such an obviously ignorant person such as GOP? Usually these people are in their late teens or early 20s, full of themselves, and puffed up get so much attention. At that age, I’d get into fruitless and narcissistic arguments all the time, believing myself intelligent beyond the ken of others. I regret now all the time I wasted, and also the time of those who bothered to engage me in that sterile exercise.

  30. BlueStateRedHead says:

    At work, so don’t know and can’t check if this has been said.

    Two minutes ago the DOJ says what EW wants, EW gets. More memos on the way.


    at they may soon disclose further secret opinions about interrogation, surveillance, and other national security policies.

    back to work.

  31. klynn says:

    In honor of FrankProbst…Instead of…well you know… go enjoy this Oxdown about the “after party.”

    Jon puts everything in perspective!

    I am still laughing!

    • klynn says:

      Rinse and I’ll repeat my link for a distraction in the form of high humor from Jon!

      Go quick! It puts everything in perspective…

  32. Mary says:

    77 Well, I’m not going to stew over it /badsnark

    73 – I’ll try to put together a summary and dump it here

    Completely OT, but just how bad have things gotten in Pakistan? About this bad:


    At least a dozen men ambushed Sri Lanka’s cricket team with rifles, grenades and rocket launchers Tuesday, converging on the squad’s convoy as it drove through a traffic circle near an eastern Pakistani stadium.

    All those people Bush had Musharef disappear don’t seem to have made Pakistan safer.

  33. GregOPauls says:

    NYTimes, ha ha ha, did they do the background investigation?
    Clinton knew who bin-laden was and did nothing to stop him. Left it for someone else, coward.

    • dakine01 says:

      I know stop feeding the troll, but just in case other vulnerable people are reading.

      GOP, you obviously have no memories of the times that Clinton DId attempt to kill bin-Laden. Firing rockets into Al-Qaeda camps in I believe Yemen and a couple of other countries where Al-Qaeda was operating.

      He was accused of trying to Wag the Dog by starting a war to distract from the Monica stuff.

      He did far more to actually attempt to STOP bin-Laden. Bush couldn’t be bothered. And where is bin-Laden these days anyway?

  34. BoxTurtle says:

    GOP is invoking Clinton.

    EW is invoking Reagan.

    bmaz is playing catherd to a bunch of bloggers who want to play with GOP like a catnip toy.


    Boxturtle (We can’t lsat much longer)

    • BoxTurtle says:

      We can’t lsat last much longer

      Spellcheck, you idiot turtle.

      Boxturtle (This waiting is worse than the last week before Return of the King was released)

    • phred says:

      You just hit the nail on the head — I’m loitering quite a lot the past couple of days hoping hoping hoping to hear from Walker…

  35. GregOPauls says:

    ok, ok, I will stop and just read your comments.
    Sorry for disturbing the peace.
    I will educated myself in your ways and live to comment another day.

  36. klynn says:


    Boxturtle (We can’t last much longer)

    Not to depress you or others, but I must add the reminder: time zones…Walker’s COB is much later for us EST folks.

  37. bmaz says:

    Hey guys he wasn’t back in his chambers yesterday and didn’t return until this morning. So you can factor that in to the equation along with the time zone thingy.

    • phred says:

      I knew EW put you on Walker watch — I didn’t know she made you sleep in your car on a stake-out ; )

      • JimWhite says:

        I’m glad she did. I was looking for some tinfoil so I could ask if Walker ever came back from his undisclosed location. This puts me more at ease…

      • emptywheel says:

        He’s been very very diligent on this one.

        I think we need to get together a collection for some tequila, bc I’m betting he’s gonna be in the car again tonight.

      • Petrocelli says:

        He stopped briefly to kick 3 Puppies and steal Candy from a baby before giving a brief to Lynne Cheney !

        … zounds, I was staking out the wrong guy …

        • Petrocelli says:

          LOL … sorry, that should be “… a brief kiss to Lynne Cheney !”

          I blame Tom DeLay appearing on my TeeVee for the error.

  38. Nell says:

    phred, with the usual caveats, start with reading the wikipedia entries on ‘enemy combatant’ (which discusses Quirin) and ‘Ex Parte Milligan’

    • phred says:

      Well, if you were better at picking winners, you would at least have a shiny new hubcap ; ) That would be a start…

        • phred says:

          Well, of course not, you were busy staking out Cheney (no wonder you’re up for some tequila ; )

      • emptywheel says:

        Two shiny hubcaps, but you’d have to share one with LabDancer.

        But then bmaz was too busy using a failed theory of reverse psychology to convince the Cards to win.

        • bmaz says:

          Hey, that reverse psychology gig worked great right up till that defensive lineman ran Warner’s pass back like a 190 yards for a touchdown with no time on the clock.

        • LabDancer says:

          I kan haz hubkap?

          Must be owing to those two ‘out-of-body’ experiences predicting Spidey to go zone next play.

          Mind you: that result pretty much comes down to just anticipating when the qb is most liable to go arachnoid.

  39. maryo2 says:

    Do the Geneva Conventions specifically address jailing children? If yes, I wonder if there is a memo that argues that age does not matter.

  40. JohnLopresti says:

    Although only having time to sort out one of the batch memos so far, with an occasional reading of the threads, a few concurrent elements appear to me to have possibility of ongoing viability explaining the incremental nature of the surfacing of the memos, plus I agree the reins passing is about to occur more thoroughly. I recall Bradbury’s parsed testimony and those threads, too. However, the items which were prominent to me for their absence are the issues surrounding the executive order by the prior administration exempting intell from compliance on congress’ select list of discrete disallowed torchers, and the ongoing work to define how many of those Olc memos might be part of that separate pathway of illicitude. Then there is the treaty issue, of which Valtin timely reminds, which figures into the basic affinity for tocha in some of the now canceled opinions from Olc, given new leadership, new administration. Another shift ongoing is likely consolidation of detainment in Afghanistan. A further related topic in my incomplete subjects list remains the admiralty issues of shipboard interrogation facilities. I think, at the time many of the memos were promulgated it would have been likely there was an atmosphere more disposed to address some of these residua in aggregate as seen in the October 23 2001 memo from Yoo and Delahunty to Haynes re aumf as domestic application of armed forces by president in martial law. I observe these releases all are appearing bitmapped and unOCR’d, one of my key tools in structural evaluation of whitepapers and similar documents such as these memos.

  41. earlofhuntingdon says:

    It’s called padding, the sort of thing corporate criminal defendants do all the time when they’re still combing through board minutes and executive memos, trying to find all the ones where the company’s lawyers say, “If you do X, it’s a crime.”

    Releasing ten percent (5 of 41) of the memos demanded in the ACLU lawsuit seems paltry. Throw in a couple of interesting but collateral memos, bump the total disclosed up the nine out of 41 and, wham, suddenly you’ve “released” twenty per cent of the requested documents. Not really, but it looks that way to the press and a public that receives its news filtered by them.

    Smart judges call it what it is; non-compliant production of documents. Sanctions ought to follow for these defense lawyers and their client, as well as speedy review of what they’ve disclosed for its implications.

  42. lennonist says:

    While we wait, some excerpts from Yoo interview in the OC Register today:

    -”Now that I’m not in the government, part of my role, because I have a certain amount of expertise, is to try to keep the government honest.”

    -”When you are in the government, you have very little time to make very important decisions… don’t have the luxury to research every single thing and that’s accelerated in war time.

    – “[T]he job of a lawyer is to give a straight answer to a client… I sometimes worry… that lawyers in the future in the government are going to start worrying about, “What are people going to think of me?” Your client the president… needs to know what’s legal and not legal. And sometimes, what’s legal and not legal is not the same thing as what you can do or what you should do.”

    So glad to know he’s shaping young lawyers’ minds and “keeping govt honest.”

    • phred says:

      Your client the president…

      Yoo, wrong again. The White House Counsel is the President’s lawyer, last I checked DoJ was supposed to represent the interests of the American public. Did anyone actually check to see whether Yoo passed any of his classes?

  43. Mary says:

    Phred, be careful what you ask for, the only sources wordier than me are old Sup Ct cases and Scalia.

    Here is a link to Milligan. The case summary is misleading so skip it. The case itself is hard to read for a couple of reasons. First there are lot of procedural issues involving habeas that are being discussed; second the recorded case includes the actual arguments of both sides at oral argument. It makes for a long read, but if there were a “Good News” edition of the case, in modern language, you would see pretty much the same arguments made today by the pro-torture cartel. It was a war unlike any other, the President has to be able to keep everyone safe, these bad guys dress just like you and me and hide out among us, etc. etc.


    Milligan lived in Indiana and his part of Indiana was going on with every day life, day to day, but with military (Union) stationed around them. There was an act of sabotage and the military seized Milligan, gave him a fast “commission” and then sentenced him to death. A lawyer intervened on his behalf through the civilian courts, which were open and functioning. Eventually the case made it to the Sup Ct. On the argument of whether or not the military could seize a citizen on US soil and subject him to the commission while suspending his protections under the bill of rights, Gov argued – sure we can. After all, he’s a battlefield capture (theatre of military operations capture). He was “captured”

    at a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, [and various other places specified] in Indiana, a State within the military lines of the army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.

    Therefore, what we at the bar must discuss, and what the court must decide, is, what law is applicable to a theatre of military operations, within the lines of an army, in a State which has been and constantly is threatened with invasion.

    So over and over there are references to not only the fact that the State where he was captured had been attacked, but also that it was behind active military lines and under constant threat. And you know, we were at actual declared war on this native soil. So – military commissions it is, right?


    It follows, from what has been said on this subject, [***221] that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substituted for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, [**298] it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authroity was never disputed, and justice was always administered.

    So obviously the court was just opting for the mollycoddling of terrorists – or not.

    It is proper to say, although Milligan’s trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by an established court and impartial jury, he deserved severe punishment. Open resistance to the measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of government, and have not the excuse even of prejudice of section to plead in their favor, is wicked; but that resistance becomes an enormous crime when it assumes the form of a secret political organization, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the country into peaceful communities, there to light the torch of civil war, and thus overthrow the power of the United States. Conspiracies like these, at such [**299] a juncture, are extremely perilous; and those concerned in them are dangerous [***227] enemies to their country, and should receive the heaviest penalties of the law, as an example to deter others from similar criminal conduct.

    The court also makes this observation on the argument that he could be subjected to military punishment as a prisoner of war, even though he was not treated as a prisoner of war on capture: “If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?”

    The court also had to deal with the argument that, formal martial law or not, in a time of war the CIC could just disregard the Bill of Rights, including the 4th Amendment, as a result of the “laws and usages of war.”

    Have any of the rights guaranteed by the Constitution been violated in the case of Milligan? and if so, what are they?
    Every trial involves the exercise of judicial power; and from what source did the military commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them; because the Constitution [***210] expressly vests it “in one supreme court and such inferior courts as the Congress may from time to time ordain and establish,” and it is not pretended that the commission was a court ordained and established [**296] by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is “no unwritten criminal code to which resort can be had as a source of jurisdiction.”

    But it is said that the jurisdiction is complete under the “laws and usages of war.”

    It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.

    Rather, the court held, war is hazardous to freedoms and the safeguards to freedom in the Constitution cannot be set aside, whether by the President, the Congress or the Judiciary.

    This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human [***217] liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew — the history of the world told them — the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.

    What the Yoo et al were hoping was to just ignore Milligan and pretend that was supplanted by WWII case of Ex Parte Quirin. In that case, some German soldiers landed in the US, wearing partial uniforms, to conduct sabotage. When the alarm was raised, they ditched their uniforms and spread out. Two turned themselves in to the FBI (which had a hard time believing them at first) After all were captured, Roosevelt convened a secret military tribunal and sentenced all 8 to death, later commuting sentence for the two who turned themselves in. All gave confessions (without much suggestion that torture was used or needed). Roosevelt fast tracked the men for execution and let it be known it was going to happen, one way or the other. The court fast tracked the case, issued a quickie opinion that authorized the tribunal and sentence, and the men were quickly electrocuted. The court later went on to issue its Korematsu opinion, and both have been very criticized. The court was a bit between a rock and a hard place, as if they held the commissions were unconstitutional and Roosevelt still executed, while we were at a time of unquestioned war, the power of the court would probably be undermined forever.

    But in Quirin the court held:

    …the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

    The Yoo crew were hoping to have Quirin treated as formally overruling Milligan.

    So enter Hamdi, involving a US citizen, actually taken on what I think the Milligan court would agree was the theatre of military operations, but then brought back to the US to a brig. Keep in mind that the views Scalia goes on express flow entirely from Hamdi being a US citizen and don’t apply to his views on non-citizens, but here’s his reaction to the Yoo crew and their argument to overrule Milligan.


    Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge

    Further evidence comes from this Court’s decision in Ex parte Milligan, supra. There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id., at 6—7. The Court rejected in no uncertain terms the Government’s assertion that military jurisdiction was proper “under the ‘laws and usages of war,’

    Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdi’s imprisonment without criminal trial is no less unlawful than Milligan’s trial by military tribunal.

    Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war:
    “If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he ‘conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,’ the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.” Id., at 122.
    Thus, criminal process was viewed as the primary means–and the only means absent congressional action suspending the writ–not only to punish traitors, but to incapacitate them.

    So what about Quirin? Even Scalia argues that it was not a proud moment in US law.

    The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U.S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U.S. citizen. The case was not this Court’s finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id., at 18—19, unnumbered note; a week later the Government carried out the commission’s death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later.

    Quirin purported to interpret the language of Milligan quoted above (the law of war “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed”) in the following manner:
    Elsewhere in its opinion … the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war … .” 317 U.S., at 45.

    In my view this seeks to revise Milligan rather than describe it.

    Scalia goes on to distinquish in part by saying that the Quirin saboteur were not contesting the facts of their membership in the German army or sabotage mission, and drops this in footnote:

    But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen’s liberty depends

    I’ve always thought this opinion kept Scalia from getting the Chief Judge slot that Roberts took, and kept Luttig from getting Alito’s slot. If Lutig had been put on the court, he would have had to recuse for Padilla. And after the Hamdi case came out, Gov had to quake a bit over Padilla. If the only reason Scalia dissented in Hamdi was because he thought O’Connor bent over too far backwards to play “Mr. Fixit” for an O’Connor who was trying to ignore a President’s illegal acts (and he pretty much says that’s what he thinks in his opinion) then when Padilla came round they knew they were going down.

    And in the midst of all that – DOJ held their Padilla presser. Something for which there should have been an OPR investigation IMO.

  44. Jkat says:

    “your client.. the president” …

    hmmmm.. i thought the DOJ worked for the united states …

  45. emptywheel says:

    And I should explain about the footnote comment–in one of these opinions, this precedent was dismissed with a half-assed footnote, pretty much akin to Yoo’s totally ignoring Youngstown in another memo.

  46. MsAnnaNOLA says:

    So given all of this, (and I have not read every comment) should we as a people endeavor to repeal the “war on terror” or the authorization for military force. If this act gave rise to such aggregious things, can’t we repeal it and put a stop to it?

    At least some of it?

  47. Mary says:

    I guess it was kind of a Bigfoot Note?

    Really, for Yoo to just blow it off is incredible. Love him or hate, Scalia ate their lunch then barfed it back up on them and made them thank him for it.

    • phred says:

      LOL : ) Who knew I would ever admire Scalia? The world is a strange and mysterious place ; )

  48. earlofhuntingdon says:

    Using the military for domestic law enforcement activity? Verboten. Solution: redefine all their activity is martial, to avoid having to declare martial law and to avoid violating Posse Comitatus, a post-unCivil War law specifically designed to prohibit the kinds of uses envisioned for them envisioned by Mr. Cheney.

    The lid on these abuses, I hope, will slowly but inexorably come off. The MSM will be suitably nonplussed. But those without its vested interest should be suitably flabbergasted at the violations done in their name.

  49. emptywheel says:

    I think it was Kagan who, when asked if she thought allaged terrorist financiers in (IIRC) the Philippines counted as the battlefield of the global war on terror, said yes.

  50. MichaelDG says:

    Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human [***217] liberty are frightful to contemplate.

    Just had to log in and thank Mary for this. Would that we could have such fearless proclamations now from our leaders. I’ve been reading here all day at work. I finally am home and can put something up. Sure was fun with GOP while we wait (not). Is this ruling actually going to come today? And from where. Hey, I mostly just watch over your shoulders.

  51. Jkat says:

    IANAL .. but thanks to the team here at FDL .. my law education is coming along nicely .. y’all are Awesome legal critters ..

      • prostratedragon says:

        Yeah, but you oughtta read it, it’s good.

        Thinking back, though ex parte Milligan was covered in a “poets” con law/civil lib course I took in college, but I’m sure my first exposure to it was actually in high school U.S. history as part of the Civil War curriculum. That’s how fundamental some people think it is, anyway.

        (I was educated by a lot of teachers who came through the McCarthy period and were terrified that there might be a next, worse go-round.)

        • macaquerman says:

          I read every bit, savored it, and sent thanks for it.
          I read EW and the comments with an ever-increasing appreciation.

  52. worldwidehappiness says:

    All memos must be released because that’s the only way to know if these 9 memos are:

    1. The worst memos and therefore Obama is being unfair to Bush,


    2. The best momos and therefore Obama is being kind to Bush.

  53. neurophius says:

    Whew! 164 comments and I’m finally in real time!

    and Late Late Nite starts in 5 minutes

  54. Valtin says:

    Some relevant selections from Yoo. I think he tries to push in the notion of executive powers, but in general I find his way of thinking to be essentially opportunistic, i.e., he’ll find whatever he needs to make the political case he wishes to make. I think this is akin to the various legal criticisms of his known memos. — Note his comments on limits to the “unitariness of executive action”:

    Another significant textual difference between a treaty and a law is found in the treaty power’s placement in Article II, which vests the executive power in the President, rather than in Article I, which vests all legislative Powers herein granted” to the Congress. The Treaty Clause’s location suggests that treaties are executive, rather than legislative, in nature. The Senate’ participation alone does not convert treaties into legislation, just as the Senate’s participation in appointments does not transform them into legislative acts. Instead, the Constitution appears to include the Senate both to dilute the unitariness of executive action in the area of treaties, and perhaps to impart more continuity and wisdom to the conduct of foreign affairs. With their six year terms (two years longer than the President’s), Senators would provide “a sense of national character” and stability, much like that supplied by the privy council in England and the governors’ councils in the states, and would restrain
    abuses of power by the executive….

    Fourth, the Constitution does not directly address the implementation of treaties. As international affairs come to exert more impact on domestic matters, efforts to enter broader, more intrusive treaties may place considerable stress on the public lawmaking system….

    [Yoo on the ABM treaty only comes in a footnote. Here’s the relevant passage and the footnote.]

    While the division of the treaty power between the President and Senate—and its implications for the making, interpretation, and termination of international agreements—has received the most sustained scholarly attention,39 the provision’s true innovations rest in the area of federalism….

    39. See, e.g., Michael J. Glennon, Constitutional Diplomacy 123–63 (1990) (exploring the tensions between the legislative and executive roles in treaty processes); Harold Hongju Koh, The National Security Constitution 40–45 (1990) (exploring the issues created when the executive branch attempts to circumvent legislative input in international agreement making); Raoul Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577, 583 (1980) (arguing that the President cannot terminate treaties unilaterally); Bestor, supra note 32 (arguing that the treaty clause was intended to preserve a role for the Senate in defining foreign policy objectives of treaties); Joseph R. Biden, Jr. & John B. Ritch III, The Treaty Power: Upholding a Constitutional Partnership, 137 U. Pa. L. Rev. 1529, 1545 (1989) (claiming that the President cannot unilaterally and fundamentally change a treaty by reinterpreting it in disregard of executive representations to the Senate); Lawrence J. Block, et al., The Senate’s Pie-In-The-Sky Treaty Interpretation: Power and the Quest for Legislative Supremacy, 137 U. Pa. L. Rev. 1481, 1483 (1989) (arguing that the responsibility to interpret treaties is solely vested in the President by the Constitution); Abram Chayes & Antonia Handler Chayes, Testing and Development of “Exotic” Systems Under the ABM Treaty: The Great Reinterpretation Caper, 99 Harv. L. Rev. 1956, 1958 (1986) (challenging the President’s authority to modify or alter a treaty obligation without the consent of the Senate); Abraham D. Sofaer, The ABM Treaty and the Strategic Defense Initiative, 99 Harv. L. Rev. 1972, 1985 (1986) (defending the President’s authority to interpret the ABM Treaty broadly).

    So we see Yoo in his academic guise retreat behind the skirts of scholarly inquiry and its apparatus. I haven’t still finished reading this monograph, but thought you’d be interested in these passages.

    • macaquerman says:

      I think you do him too much honor if you think that even he takes his arguments seriously.

      • Valtin says:

        I have said what I think: Yoo’s writings are opportunistic and cynical, and aimed only at achieving a particular, odious political program. He should be prosecuted along with the rest of the criminals. But he, like many lawyers, know where the ambiguities in the law lie, and he likes to ply that furrow, along with his out and out lies (e.g., taking definitions on pain from a distortion of a reading from a medical reimbursement reading, if my memory serves me right).

    • acquarius74 says:

      I must develop a stronger stomach, Valtin. Nevertheless, thank you.

      That first segment quoted brought to mind some black-robed, over ranked Jedge, very impressed with himself, handing down his august determination of many words but little substance. hmmm.. Yoo clerked for Justice Thomas, clone of Scalia.

      Nowhere do I see that he admits that his ‘findings’ are but his opinions, or his interpretations of the law. IMHO, the purpose and intent of his memos was to negate the true purpose and intent of the Law, and for 8 years he was very successful in that.

      This is one sick man who should not be allowed near a student of even the contents of a cow patty!

    • TheraP says:

      Simple principle fallacy which seems to cover a lot if not most of these memo strategies and bushco tactics:

      The end justifying the means.

      They picked their ends: War with Iraq, Torture, Rendition, De Facto Dictatorship, Spying on Americans (etc)

      And like sociopaths in all walks of life, they used their intelligence to circumvent and subvert, rather than to reason in ways which considered the Rule of Law as it concerns the welfare and rights of its citizens.

      Look at any of their policies, tactics, strategies and I think you will see this simple fallacy playing out – over and over and over and over.

      Many thanks to Mary and Valtin, EW of course – and everyone – on this thread.

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