They Picked a Bad Week to Stop Sniffing Glue

The Obama Administration got stuck with a bad court date to have to try to convince a Judge the Jose Padilla suit against John Yoo should be dismissed. After all, we knew Yoo’s memos were legally indefensible. But with the release of nine new OLC memos–including the memo eviscerating the Fourth Amendment, the two withdrawing that one and others, and, significantly, one of the memos pertaining to Padilla specifically ("authorizing" his military detention), the sheer cravenness of Yoo’s legal work is in sharp relief this week.

Nevertheless, they did argue Judge White should dismiss the suit. Though it sounds like he wasn’t impressed with their argument. 

The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla’s lawyers thoroughly, but he appeared to be skeptical of elements of the government’s argument.

And he referred to the 4th Amendment Evisceration memo specifically.

In fact, Judge White, who was appointed by President George W. Bush, even told the government’s lawyers that Mr. Yoo’s 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was “a pretty scary position.”

And there’s a further problem with the Administration’s position. They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.

But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said. 

Which suggests that the Administration thinks its puny OPR investigation against Yoo is an appropriate response.

The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture. And yet based on that, they want the Courts to butt out.

One more point. It appears that the Administration has not yet turned all the memos used to justfy Padilla’s treatment over (or at least not made them public). 

Earlier last week, the Obama administration released nine "war on terror" memos — some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee — shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn’t release all of the memos referenced in Padilla’s complaint, and White asked whether that meant he had to take Padilla’s descriptions of those documents as true, for purposes of a motion to dismiss.

White characterized his inquiry on this subject as "50 percent curiosity, and 50 percent legal significance." The government once again revealed its awkward position in the litigation, since technically Yoo is being sued in his individual capacity. Thus the government is not a party, and has no discovery obligations.

"What’s the harm in putting all of the memos on the Web site?" White asked.

"I have no idea what the harm would be," Mason said, adding that it is a policy decision made by officials in Yoo’s former office.

It has already been a bad week for the Obama Administration to be making this argument. But apparently, they’re still sitting on some of the opinions that could have made it worse. 

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88 replies
  1. AirportCat says:

    “Guess I Picked a Bad Week to Stop Sniffing Glue”

    I love that movie, but then you knew I would.

    • freepatriot says:

      wrong

      Obama has HIS OWN FATE in his hands

      and a CLEAR EXAMPLE of what FAILURE looks like

      Obama gets to choose between george w bush or the People Of the United States

      and History is watching

  2. Mary says:

    So in The Saga of The Toture Lawyers, wtih Kenny Rogers off to the side, strumming:

    You picked a fine time to stop sniffing the glue
    With hunger striking victims
    and a suit against Yoo,
    you picked a fine time to stop sniffing the glue

    you have Gov saying both that it is in court to defend Yoo, but only because it is Gov that will punish Yoo if he needs it – that would be Gov that will punish Yoo who no longer works for Gov.

    I do hope that the reference to it being an Executive, AND CONGRESSIONAL, perogative is preserved in the record, as that goes to my argument on the Judiciary committee shifting from a Truth Commission to an investigation – a REAL investigation – of Executive branch lawyers and their conduct in connection with the secret memos and related matters.

    But if Yoo never spent much time with Milligan, it sure sounds like Mason never spent much time with Bivens:

    “You’re not saying that if high public officials commit clearly illegal acts, a citizen subject to those acts has no remedy in this court?” asked U.S. District Judge Jeffrey White.
    Not unless Congress has expressly authorized a lawsuit, Mason replied.

    White also gives Gov a little catch-22, although I’m guessing he’s going to fashion a way around it for them. Under a Motion to Dismiss standard, he says, if you have memos you still haven’t made public, don’t I have to take Padilla’s allegations about those memos as true? That’s a nice moment.

    What all of this actually gets to, though, is finally a relatively clear, public statement of what I’ve been trying to get at as the necessary corollary to the arguments that the Executive could ignore or reinterpret laws passed by Congress and even allow a few years worth of affirmative misrepresentations to Congress – all based on the “life is a battlefield” claim. It’s what I thought was really at issue in the FISA showdown and in all the instances of document destruction and open deception to the Sup Ct in arguments on torture.

    The necessary corollary to the Executive branch lawyers saying that the Executive was not bound by Congressional laws BECAUSE of the battlefield analogy is that they are also saying the Executive, including the employees through which if functions, including themselves as lawyers, the Executive in its “battlefield” actions is not bound by the other component of law either. The Executive lawyers were essentially claiming that they were not bound by court orders and case law either.

    You pretty much can’t have CIC battlefield powers if you are operating in a venue where courts are also open and operating. And imo,this was the big FISCt dilema and why suddenly lawyers who had been happily sending off soldiers and CIA agents to commit war crimes got serious. Their own hides were and are on the line with respect to violating court orders – as opposed to “mererly” authorizing others to disappear children and schedule appointment for razoring genitalia and conducting massive human experimentation into isolation and torture to “break down” the victims.

    The FISCt had already had its own run in with Townsend on fibs to the court and it didn’t seem to buy off on any kind of claim that it didn’t have authority over misconduct of Executive branch officials in front of it. The DOJ lawyers imo realized that the Court, unlike the docile, submissive, torture voyeurs in Congress, might actually buck the Executive’s self-determination that its lawyers weren’t bound by Court orders, just as its “in the field” torturers weren’t bound by laws. Those assertions would have been inextricably bound – if the Exec was saying Congress had no footing, it was saying the same vis a vis the courts.

    Lawyers, though, are only members of the bar through what is in essence Judicial grace. They appear before a court only by that court’s authorization. Go into a lawyer’s office and you will often see any number of certificates hanging on the wall, indicating the courts in front of which the lawyer is authorized to practice – that authorization did not come from the Executive branch of Gov, even if they are Gov lawyers – it came from the courts.

    I guess that’s all kind of a rambling digression. Mason is trying to clean up the argument on Executive power, and try to make it seem that this is a situation of The Executive + The Legislative = beats the Judicial, by arguing that Bivens (which authorized lawsuits despite the lack of a Congressionally enacted recovery statute) is wrong and that the courts can’t act without such a statute because it is getting into Executive AND Congressional territory; but the real argument goes much further.

    The real argument is the one that Lindsey Graham keeps hammering on. THe real argument is that Milligan notwithstanding, the world has changed now to where the theatre of military operations is not limited to areas where courts are unable to function – and that instead even in areas where courts are open and functioning well and fully, the Executive can disregard the courts, because he is conducting a war on a battlefield.

    So far, the Obama administration, for failure to embrace any robust position to the contrary, is just drifting along in that wake. That’s not a good thing.

    • klynn says:

      I guess that’s all kind of a rambling digression. Mason is trying to clean up the argument on Executive power, and try to make it seem that this is a situation of The Executive + The Legislative = beats the Judicial, by arguing that Bivens (which authorized lawsuits despite the lack of a Congressionally enacted recovery statute) is wrong and that the courts can’t act without such a statute because it is getting into Executive AND Congressional territory; but the real argument goes much further.

      If the argument on Executive power (Executive+The Legislative = beating the Judicial) pans out, we are in a world of hurt in terms of protecting the Constitution.

      Thanks for this post EW. Thanks for your comment Mary.

    • BayStateLibrul says:

      I love the term “judicial grace”… never heard it before.
      If we have grace, guess we have “judicial disgrace”, with Yoo as
      the point man…

    • R.H. Green says:

      These “rambling digressions” of yours constitute (imo) a form of public education, and I (we) are grateful for it. From your treatment on Milligan, I can now ponder whether the “world-as-battlefield” extends into the courtroom itself, mitigating the need to bring sidearms to defend one’s position. This last remark is, of course, silliness; my first is not.

    • acquarius74 says:

      All together now: (you too, Kenny Rogers)

      So in The Saga of The Toture Lawyers, wtih Kenny Rogers off to the side, strumming:

      You picked a fine time to stop sniffing the glue
      With hunger striking victims
      and a suit against Yoo,
      you picked a fine time to stop sniffing the glue

    • jdmckay says:

      What all of this actually gets to, though, is finally a relatively clear, public statement of what I’ve been trying to get at as the necessary corollary to the arguments that the Executive could ignore or reinterpret laws passed by Congress and even allow a few years worth of affirmative misrepresentations to Congress – all based on the “life is a battlefield” claim. It’s what I thought was really at issue in the FISA showdown and in all the instances of document destruction and open deception to the Sup Ct in arguments on torture.

      Thanks… I really appreciate the legal order your posts/thoughts give to so much of the legal/constitutional/moral absurdity we seem destined to deal w/for some time… like a bad hangover.

      I do wonder, however, if this Yoo filing has anything to do w/establishing principles you outline, or rather more protection for the executive. Seems to me Marcy asks the same question above…

      They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.

      Or to put it another way (at least from my non-lawyer POV): the gap between establishing principles you outline and initiative by BO to do so is anything but clear to me.

      Again, from my non-legal POV, it seems Yoo’s egregious constitutional legal transgressions & their consequences are so off the charts that any attempt by Obama admin to give them room for justification is… bothersome.

      Anyone know anything about DOJ senior trial counsel Mary Mason (DOJ’s court rep in this filing)?

      Somewhat off topic, but maybe not (as in BO’s policy of fed gov secrecy trumping open/truthfullness which he persuaded me he stood for):

      Quelle Surprise! Who Gained From AIG Rescues? Goldman (and Deutsche) Tops the List (and Willer Buiter is REALLY Angry!)

      The beneficiaries of the government’s bailout of American International Group Inc. include at least two dozen U.S. and foreign financial institutions that have been paid roughly $50 billion since the Federal Reserve first extended aid to the insurance giant.

      Among those institutions are Goldman Sachs Group Inc. and Germany’s Deutsche Bank AG, each of which received roughly $6 billion in payments between mid-September and December 2008….

      The names of all of AIG’s derivative counterparties and the money they have received from taxpayers still isn’t known, but The Wall Street Journal has identified some of them and is publishing others here for the first time….

      And the kicker, at least for me:

      In a Senate Banking Committee hearing in Washington on Thursday, Fed Vice Chairman Donald Kohn declined to identify AIG’s trading partners. He said doing so would make people wary of doing business with AIG.

      Again, a continuation of Bush/Paulsen secrecy on TARP counterparty obligations (as in total well over $50b according to WSJ source), an issue upon which Obama pledged openness on several occasions.

      related links:
      WSJ: Top U.S., European Banks Got $50 Billion in AIG Aid
      Barry Riholtz (The Big Picture)
      iBanks Grabbed $50 Billion in AIG Bailout Cash

      Backdoor Bailouts for Goldman Sachs?

      And lastly, as David Merkel explains (should be shouted from Mtn Tops):

      (…)
      Any scheme that relies on increasing prosperity is inherently mismatched. No tree grows to the sky, and that includes nations and their governments. There is a natural process where nations are born, grow, mature, decay, and die, unless some event intervenes to revivify the nation, giving it new purpose and energy. With the US over the last 75 years, there has been slow decay amid prosperity. Payment for obligations is pushed out into the future, because growth will solve our funding crises. Government debt covers a multitude of sins, in the intermediate-term.

      Financing the Economy at Treasury Interest Rates

      When I hear talk that the government should borrow to fund mortgages, or dodgy companies, I cringe. I hear things like: “These assets are at depressed levels because of a lack of confidence. The government can borrow and buy them, and make a profit on the spread, particularly after confidence resumes.” “Let the government absorb Fannie and Freddie and make loans at affordable rates to people. They can provide mortgages much cheaper than the private sector.” “The value of the assets of AIG is artificially depressed. The government can finance those assets and sell them for a profit when confidence reappears.”

      The borrowing capacity of the US Government is limited. I don’t know what the limit is – which straw will finally break the back of the camel, but there is a limit. The borrowing capacity of our government should be used to its best effect, and playing as a bank or a hedge fund is likely not the right answer.

  3. Spokane61 says:

    Sent to the White House this morning

    Sir,

    Your appointees to the Justice department are actively siding with the view of American Justice that the Bush administration held. You, sir, should be deeply ashamed of yourself for this behavior. You know better. You taught Constitutional Law. You swore to uphold the Constitution.

    When you in the person of your Justice department interviened in the case of Padilla v. Yoo, 08-00035, U.S. District Court, Northern District of California (San Francisco), you forfited any pretense of ignorance or indeed any love of Justice.

    As I said you should be deeply ashamed. I am deeply ashamed for you and of you. Nothing else that you have done as made me so regret my support and vote for you this last year.

    I hereby call upon you to resign your office or face impeachment for crimes against the constitution.

  4. Mary says:

    9 – as long as it doesn’t conjure up images of Ballerinas of the Bar, in toe shoes and tutus. *g*

    One other observation – someone needs to get Gov to fish or cut bait on this issue of who is responsible for what. Yoo (and here Gov) argues that all he did was write and opinion, he didn’t authorize any actions.

    And yet – in other instances (see, e.g., the recent Time article, Panetta’s statements, etc.) the Palace Torturers are saying tha they didn’t torture because the President told them to, they tortured bc the Palace lawyers said it was legal. IOW, the torturers are claiming that the final step in the torture authorizations wasn’t the EO or other less formal directives to torture – those orders were incomplete until the final step in authorization took place, a lawyer signing off.

    So either the torturers are being truthy, and they were not relying on actual protection from what Yoo is claiming were just broad statements of legal principles and not actual authorizations to any one person to take any specific actions against any other person, or Yoo is being truthy in claiming that his opinions weren’t the final torture authorization step in actual and specific torture that took place.

    • bobschacht says:

      One other observation – someone needs to get Gov to fish or cut bait on this issue of who is responsible for what. Yoo (and here Gov) argues that all he did was write and opinion, he didn’t authorize any actions.

      Wasn’t this part of Cheney’s method of compartmentalization? That is, if you want to do something odious, you divide the task into a bunch of not-so-odious pieces, put different people to work on each task, and prevent anyone from seeing the whole for what it is. Dividing the responsibility was an essential CYA tactic. What is probably needed is laws aimed particularly at this.

      Bob in HI

    • Jkat says:

      9 – as long as it doesn’t conjure up images of Ballerinas of the Bar, in toe shoes and tutus. *g*

      oh .. but it does .. with sidearms …

      but i’m really thinking an “opera” would be the appropriate treatment ..

      i’ll add my kudos as well to the legal opinions .. very lucid work ..

  5. Mary says:

    11 – what a great image.
    Your honor, you only think this is your courtroom – it’s actually the Executive’s theatre of operations. Any act to rule against the Executive will be deemed treasonous with attendent consequences. Your bailiff has been impressed – you will be confined in isolation until you tell our interrogators lawyers what they need you to say.
    Got that?
    ‘Kaythnxbai

    I’m off to play squash with Haynes and Addington (and yeah, the squash court is a theatre of operations too – we keep running out of partners after the executions for providing material support to the enemy by taking advantage of Addington’s backhand)

    The really silly part isn’t playing their concepts out to the full, it’s watching Kagan and Holder so eagerly embracing them so that the kewl kidz will like them.

    • R.H. Green says:

      Considering further, the whole “world-as-battlefield” notion, combined with the “anyone can be an unlawful enemy combatant” notion, we see the world thru the eyes of Thomas Hobbes, where life is a war of each against all, “brutish nasty, and short”.

  6. acquarius74 says:

    How about giving my compliment to Marcy a thumbs-up when you’re at the DIGG? It adds to the total each time someone clicks that thumbs-up pic.

    It can be said that there ain’t no loopholes in Marcy’s Law !!

  7. freepatriot says:

    someone needs to get Gov to fish or cut bait on this issue of who is responsible for what. Yoo (and here Gov) argues that all he did was write and opinion, he didn’t authorize any actions

    all Eichmann did was arrange some train schedules

    and the US Army sent my grandfather and 8 million other guys to find that son of a bitch, with a lot of other people who were ”just following orders”

    do the repuglitards really want to go there, and defend that ???

    • freepatriot says:

      better question;

      does Obama want to go there with george, and defend george, about that ???

    • acquarius74 says:

      Thanks for that link, fatster, though I’m near to upchucking.

      Seems to me Yoo (in all his genius) in quoting the authorization by congress overlooked one vital word, i.e., appropriate

      I interpret appropriate in this case to be lawful.

      IANAL, but seems to me that the many unlawful acts by BushCo (rendition, torture, illegal wire-taps, denial of speedy trial, denial to right of defense…etc) were not and are not appropriate, therefore were not authorized by congress.

  8. RAMA says:

    Here’s what concerns and frightens me: Our entire system of constitutional government now appears to rely on the good intentions of the President. At any time, the President can have a tame lawyer write a secret opinion that entire swaths of the Constitution are inoperative and the government just goes along with it until the next President comes along and says, no, can’t do that, and stops it. That is not a description of representative constitutional democracy; it’s a description of benevolent dictatorship wherein we rely on the dictator to be benevolent and with no checks or balances at all. Obama has rescinded most of the Bush secret rulings, but there’s nothing to stop a subsequent Republican–or Democrat, for that matter–from simply reinstating them.

    • R.H. Green says:

      Or, Obama himself could effect the reversals of his own decisions. This past week I revisited an old PBS television series called, I Claudius, which chronicals the slide of the Roman republic into dictatorship, and the vain attempt to restore the republic. The whimsical application of power depicted there is disturbingly similar to the descriptions of the same here on this blog, on a daily basis.

      • RAMA says:

        The only thing that would sort of save what’s left of Constitutional government would be if Yoo and the rest of the torture and illegal surveillance gang were prosecuted for their actions. That would show, at the very least, when attempts at establishing a dictatorship were attempted, there would be legal consequences. Otherwise, as far as I can see, the Constitution’s not worth the parchment it’s written on.

      • DWBartoo says:

        “Had their sole and arbitrary power not been disguised under the forms of ancient liberty they would never have held it long.”

      • james says:

        For the past year I’ve been re-reading Gibbs “Decline and Fall of the Roman Empire.” The feeling that I’m reading modern history is a lot of times inescapable.

    • TheraP says:

      Your concern is mine as well.

      It seems to me that if the 8 years of bushco were the years of demonstrating that the executive can legislate, the tea leaves are beginning to look as if the next 4 could be about the executive’s ability to replace the courts, in so far is it concerns executive actions.

      In any case, do we really have 3 branches of govt anymore? And can we long endure with these flaws in our basic system having been exposed?

  9. justbetty says:

    It seems to me that the President needs his government to have credibility if he wants acceptance of so many things: more stimulus, health care reform, etc. To have credibility, he must act and act soon to stop these ridiculous arguments that propose, as Mary explained, to define the whole world and everyone in it as part of the battlefield and with the resulting loss of basic freedom for all of us -at the whim of who knows who.

  10. oregondave says:

    The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture.

    Indefensible. This is not the Obama I helped elect.

    • Leen says:

      Obama “no one is above the law” . How many times have we heard Obama (Pelosi, Leahy, Whitehouse etc) say this?

      EW “After all, we knew Yoo’s memos were legally indefensible”

      What is up with the Obama administration? “No one is above the law”

      OT
      Spent last week wading through our health care system with my ill 82 year old pops. At times it felt as though we were about to drown in the paper work that our senior citizens find themselves swimming (many drowning) in. I have met so many of them who have been forced to impoverish themselves so that they can get the care they need. (after spending their lives paying into this system that they thought would be there for them when they needed it)

      More time listening to the 80/90 something union WWII gents share their thoughts on the state of our nation. Their chorus “the system is rigged”

      EW/All have you heard this country song yet? Classic really classic
      John Rich “Shutting Detroit Down”
      http://www.youtube.com/watch?v=GoIXxFSq7og&e
      Shuttin Detroit Down
      John Rich

      My daddy taught me in this country everyones the same
      You work hard for your dollar and you never pass the blame
      When it dont go your way
      Now I see all these big shots whining on my evening news
      About how their losing billions and its up to me and you
      To come running to the rescue

      Well, pardon me if I dont shed a tear
      There selling make believe and we dont buy that here

      Because in the real world their shuttin Detroit down
      While the boss man takes his bonus paid jets on out of town
      DCs bailing out them bankers as the farmers auction ground
      Yeah, while there living up on Wall Street in that New York City town
      Here in the real world their shuttin Detroit down
      Here in the real world their shuttin Detroit down

  11. Palli says:

    RE: Yoo WSJ flight of fancyfear
    Why is it that people like Yoo can only conjure bad things happening?
    What do the Yoos get out of it? They already have more money than 70% of Americans; they will never be king. Are they Eichmans?

    • Jkat says:

      i think they [yoo..bush & cabal] grabbed the wrong scenario .. what’s with using this piddling little “terrorist” attack[s] meme to suspend merely the constitution of the united states .. if they’d been smart[er] they would have dusted off h.g.wells war of the worlds and had the legal underpinning to overthrown every government and law on the whole planet ..

      these boyz is simply small change tinkerers eh .. they should have gone for the golden ring ?? no ??

      i have never been so disgusted in my life .. these soi disant educated idiots keep assaulting and insulting even the intelligence of morons .. and pretending their “legal theories” have some basis in both law and fact ..

      i’m caught between outrage and trying to decide [a] if they’re on drugs ..and [b] if i’d like some too ..

      i feel sorry for the lawyers amongst us .. who are having to look on in incredulity as these stupified hacks pervert and sully the very principles and underpinnings of all that is sacred in “the law” .. under the pretense of saving us all from being killed by the terra-ist dust bunnies which are lurking under our beds awaiting only the call to arise and slaughter us all in our sleep ..

      geebus gawd and the trinity immaculate .. what a bunch of legal mental midgets we have on display eh ?? how can one keep their credentials as a high-powered-gub’mint/academic-legal-big-shot when even the most stupored laymen amongst the crowd ..at first glance ..can spot their obvious and glaring excesses and deliberate sins of ommission..??

      i’m left to simply shake my head in wonderment .. have these soi disant “law perfessers” not read their own resumes ?? couldn’t we reasonably expect that “law professors” actually means: ‘those who profess the laws’.. and not: those who make shit up to abrogate the laws ??

      was it hobbs .. or locke .. or [insert here] who wrote the immortal: “all evil needs to triumph is that good men do nothing “..

  12. cinnamonape says:

    But any recourse against a government lawyer “is for the executive to decide, in the first instance, and for Congress to decide,” not the courts, she [Mason] said.

    I was kind of hoping that Judge White had requested Yoo’s OLC memo that supported such a view

  13. acquarius74 says:

    To balance all this heavy brain work, give yourself a big treet by seeing the video clip provided today at Oxdown by Adie, ‘Guaranteed To Brighten Your Day’. It’s a side-splitter.

  14. phred says:

    But any recourse against a government lawyer “is for the executive to decide, in the first instance, and for Congress to decide,” not the courts, she said.

    It takes a stunning level of hubris for a lawyer to tell a judge that only two out of three branches count. I wish I had seen the look on the judge’s face when he heard this.

    I wonder if the judge followed up with the obvious question… “Well, if the government lawyer was breaking the law by order of the Executive, then how could they ever be held to account for their crime?”

    I realize that my grade school civics may be insufficiently nuanced, but it was my impression that Congress made laws, the President carried out laws (among a few other things), and the Courts determined who broke the law. I can’t really grasp how anyone could argue that a court has no role in determining whether a government lawyer broke the law.

    I had hoped such shameless behavior would have ended when the door closed behind Bush. I guess not.

  15. JThomason says:

    Now I think I get the Reagan Revolution:

    1)Tort Reform
    2)Bankruptcy Reform
    3)Class Action Reform
    4)Removal of disputes with large consumer financial institutions form state courts and into binding arbitration disposed toward condoning adhesive contractual practices.
    5)Usurpation of state real estate law in Federal Bankruptcy preemption.
    6)Actuarial medical practices interfering with the traditional bonds of the doctor/patient relationship.

    Regulatory powers traditionally vested in state bars with the ability to haul large corporate interests into court in the venue of the consumer are usurped by a centralized financial totality. Local interest can not be protected by centralized administrative regulatory bodies. All politics are local. An entire body of private regulation directly responsible to the people has been gutted.

    Its like Gore Vidal said. Paraphrasing: Its quite understandable that Queen Elizabeth would make Reagan, Knight, Order of the Bath. No modern politician has done more to reassert the privileges of an aristocracy.

    • bmaz says:

      Um yep, I think that is about right. Keep in mind that they do not think Ronnie the RayGun’s work is done either and, while it has been slowed a little, Obama’s overall view and “bi-partisanship” still are an incremental move in that direction. Instead of settling for slowing the pace of that movement, we need to be recoiling and reversing the ground lost.

      Obsessed @43 – That is one of my habitual catchphrase jokes; I officially am reporting it stolen and would like to point out potential culpability by a nefarious criminal known simply as the “Wheel”. I been vict-o-mized!

      • JThomason says:

        The DC’ers think some kind of reform of administrative regulation is the general procedural answer. But in truth this is a strategy of
        mollification.

        Until a general accessibility to private rights of action is restored the middle class will have no equitable remedy and without an equitable remedy there is no meaningful regulation.

        Howard Dean saw this clearly and I think that is why the media was so opportunistic in snuffing his campaign. At some level Obama was vetted by the powers that be. In fact this might be very much the reason that Gregory Craig was able to be so forthcoming in his support.

      • JThomason says:

        Its the “trial lawyer” thing, tasseled loafers and all. This is kind of what the private locally anchored regulatory class looked like.

  16. Mary says:

    That WSJ piece (apart from the operatic overtones) is pretty informative.

    Now that reliance on his opinions is being touted by torturers as the basis upon which they felt free to engage in specific acts of torture, Yoo has really backpedaled on what the opninions were meant to accomplish. Provide specific authorizations for actual and present instances of detention, torture and illegal eavesdropping? Nah.

    All he was doing was exploring contingencies – Maher Arar being sent to a gravelike holding cell for torture, or Padilla being disappeared – nope, he wasn’t involved in any of the actual things that happened. Just, ya know, in “contingency” planning for things that never came to pass.

    it was the duty of the government to plan for worst-case scenarios — even if, thankfully, those circumstances never materialized

    this careful contingency planning

    etc.

    And no, this wasn’t about disappearing children, never to have them surface after 6 years, or razoring genitalia, or sticking a bipolar chef into 3 years of isolation, all the memos said (in their 30 or so iterations of deca-page yammering) was that 9/11 “allowed the president to use force to counter force.”

    He make that observation right after his verbal poker ploy of seeing Rivkin’s “pray tell” and raising him a “harrumphed” and IMO it is really really clear that he does not want anyone to really start pinning down facts and circumstances. Never does he talk proudly of authorizing the shipment of Arar to torture, or disappearance of KSM’s children, etc. All he wants to do is mention “contingency planning” Which pretty much undercuts the fact that intel officers are saying they took specific situations and fact patterns to OLC for specific authorizations and were given reliance opinions.

    That’s the real meat and I should stop there, but I can’t. Even his op eds are incredibly bad descriptions of law and mis-cites.

    From a legal standpoint, the best he can pitch is Near v. Minnesota. It is at this point that some first year law student should tutor Yoo on the difference between dicta and holdings. When courts ramble on like me about how they might hold on things that might be or could be, but aren’t the case in front of them, so they aren’t really making a ruling on them, that’s “dicta”

    Near v. Minnesota is what is called a “prior restraints” case. It was about a statute that made certain kinds of things illegal to publish – operating to foreclose the conversation before it starts.
    The Supreme Court actually struck DOWN the Minnesota statute (and the case was used as precedent for the Sup Ct refusing to engage in prior restraint for the publication of the Pentagon papers). That was the actual “holding” in Near – that state government could not, by statute, engage in prior restraint of speech.

    With that context, which Yoo doesn’t provide in his piece, he then wrings his hands over the fact that the quote from his memo,
    “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully”

    He is indignant (and really bad at being insulting) because quoting from his memo MISREPRESENTS the memo.

    Yoo then shows the kind of understanding of case law and differentiation between dicta and holdings that would be deemed less than acceptable at any B grad law school. He is being misrepresented, he says, bc his statement is a *summary* of the Sup Ct holding in Near.

    “The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota

    he says, and goes on to then quote the “holding” that he is summarizing:

    “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right.” The Court continued: “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

    Except, of course, that as mentioned, the actual case in front of the Near court, the actual matter on which they held, involved a State’s prior restraints statute that was struck down. So Yoo first converts dicta to a holding, then mis-summarizes it in his memo, then can’t understand why anyone would roll their eyes. Besides, he has other back-up. In another case, Indianapolis v. Edmond, where the court also STRUCK DOWN the activity in front of it – so that it’s HOLDING was that the action, random traffic stops to search for illegal drugs, was UNconstitutional, the court had also said in dicta,

    The Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack,” the Court wrote.

    WOW – that’s strong stuff. In dicta the court says something would “almost certainly” be permited IF it were “appropriately tailored” to only kick in with regard to an actual “imminent terrorist attack.”

    That’s almost exactly the same as saying that the President can disregard the Bill of Rights and all statutory constraints, engaging in mass FISA felonies and shackling the First Amendment at whim on a unilateral determination that someone in the nation might be a terrorist. At least, in a “smmarization” of the “holding,” that’s how I’d put it. If I were Yoo.

    It’s almost sad – he really is teaching?

    At least he can, and does, fall back on his big guns. After all,

    Alexander Hamilton saw things differently than critics of the Bush administration.

    That would be the Hamilton who believed in having a President for life with an absolute veto power over any acts of Congress.

    As an authoritative source for suspending the Bill of Rights on imperial whim, I guess it’s hard to do better.

    Yoo then deliberately misrepresents the law on fourth amendment rights as determined in connection with the Civil War, YET AGAIN and despite even Scalia trying to straighten him out over it in Hamdi. Per Yoo:

    Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable — combat occurred wholly on U.S. territory and enemy soldiers were American citizens.

    And yet we did impose those standards where courts were open and operating. Maybe Yoo just read the first part of the Milligan opinion, which is actually Gov’s argument, and given his difficulty at discerning what a court’s holding is without a hornbook, he just stopped reading too soon?

    Despite his troubles finding a court’s holding, even with headnotes, Yoo apparently missed Philbin’s references in one of the earliest of the memos to the fact that the Geneva Conventions WOULD apply to everyone and that’s WHY military commissions could be used, and yet he muster and effort to be cutting and snits (as opposed to harrumphs) that no one is really reading his full opinions.

    It’s all very bizarre, and how it makes it to the WSJ op ed page is even “more stranger.” It’s not the internet that is killing the press, it’s the Murdoch approach to news

    • emptywheel says:

      Mary

      Here’s something I’ve been meaning to post on but haven’t yet.

      Bradbury, in a FOI response to the ACLU, said the 4 Amendment Evisceration memo was one of the memos responsive to a FOI request for memos supporting the warrantless wiretap program.

      But then when he wrote his “no harm no foul” memo this January, he said the 4th Amendment memo wasn’t tied to specific policies and programs. Particularly since the program was already started, doesn’t it mean it was a specific program (not least since it talks about wiretapping so frequently)?

  17. bmaz says:

    You know, I am a bit biased and all, but the American tort system served this country fantastically for well over two hundred years – until it started getting gutted by big business and their hired servants in government.

  18. Mary says:

    53 – I think Yoo’s new sales-pitch is that they were just contingency planners, “What happens to him when we do this …” who got a little carried away. Human experimentation/contingency planning – it’s such a hard line to find/s

    OT, but Card reveals why he and Gonzales really rushed to Ashcroft’s hospital room. Apparently he believes really REALLY strongly that gov shouldn’t pay for health care costs.

    • Leen says:

      on that ot
      I watched the Health care summit with the 80 and 90 somethings in the assisted living /nursing home world. Wish I would have written down their comments. There were too many to count. The chorus was that the “system was rigged” Cost of pharmaceuticals, and how many of them had to impoverish themselves before they could cover the generally 6000.oo a month coverage for the cost of the nursing home cost. The gentleman in his 80’s whose wife divorced him after 60 years of marriage so that she could survive while he was in the nursing home had a few things to say like “I am sick of this den of thieves”

      I had never heard the figure of how much the insurance companies spent to beat the Clinton’s (Hillary) health care reform in the 90’s. At last week’s forum someone said 500 billion was spent to beat back that Health care reform.

      Card sounds like he is part of that same team “not the time”

  19. JThomason says:

    I get it. They were just writings these memos to keep their legal skills sharp you know kind of for practice. There were really no pressing or pending realities that needed any comment or legal input. But if one came up, these guys would be ready.

    It makes good sense. One should never reach for a fig leaf until unquestionably required.

    It does kind of make hash of the reliance on legal opinion defense Mary references. But it seems like the affirmative duty to refuse an unlawful order starts chopping there in any event. Is this what the phrase “Sartrian mirror games” intended?

    • Hmmm says:

      I get it. They were just writings these memos to keep their legal skills sharp you know kind of for practice.

      Shoulda done a whole lot more, then…

      • JThomason says:

        I don’t think the Vols and Wolverines suspended football practices last year.
        Just cause you practice doesn’t mean its enough.

        I just like the image of Coach Addington lording over his team drilling them for the pending apocalypse.

        • Leen says:

          Addington “”We’re going to push and push and push until some larger force makes us stop.”

          That larger “force” seems to be wrestling with the idea of accountability
          “no one is above the law”

          • Hmmm says:

            Addington “”We’re going to push and push and push until some larger force makes us stop.”

            That larger “force” seems to be wrestling with the idea of accountability
            “no one is above the law”

            When what it really should have been, all along, was their own consciences.

  20. Leen says:

    Ot (could someone put this up for me over at the mothership?) The salon

    Paul
    Former President Jimmy Carter begged our congress not to isolate Hamas after the Palestinian election What do you hear Palestinians say about the U.S.’s push for democratically elected leaders in the middle east and then when the U.S. does not like the results some (Lieberman, Ros Lehtinen) did everything in their power to undermine their election.

  21. TarheelDem says:

    Yoo’s former office?

    Has Dawn Johnsen been confirmed yet? Who exactly is the legal head of Yoo’s former office?

    For that matter, which of the US Attorneys are not Bush appointees?

    When I know who has actually been confirmed in DOJ and what of these issues they are responsible for, I will be more critical of Obama.

    • bmaz says:

      Who is on first.

      JThompson @59 – Well, of course, that isn’t quite right because, you know, that Bradbury guy, theoretically superior to Yoohoo, said that they were heat of the moment deals specifically needed on an exigent, informed basis.

      There might be a hint of inconsistency going on here……

      • R.H. Green says:

        Can’t remember all these details. Was Bradbury the one that shouldn’t be holding office because he was rejected twice by the senate, and could therefore only stay another 120 days, which was well over 120 days ago? That guy; is he the one still writing and withdrawing legal memos? Is it Who or What?

      • PJEvans says:

        I have a niece who’s a lawyer (UCLA). She said law school requires organization. I’m not seeing much organization in Yoo’s thinking, more like a maze of twisty little passages, all alike.

  22. JohnLopresti says:

    I think it was the Orange County Register photo of Yoo at Chapman before library racks of uniformly equal size books, same binding. That, to me, is the forbidding aspect of law. Why anyone would elect to read books that all looked alike…

    Then again, here is something that changed, I found an old article Yoo wrote for the campus publication at his former post at Boalt, upon the occasion of hearings for Gonzales’ nomination to morph from WhiteHouseCounsel to AttorneyGeneral. The format, I believe, is similar to a faculty newsletter, rather than the student paper. Yoo:

    “Gonzales, among others, has made clear that the administration never ordered the torture of any prisoner. And as multiple investigatory commissions have now found, these incidents did not result from any official orders.”

    • Hmmm says:

      (Laying aside the Constitutional issues for the moment solely for the purpose of asking this question:) Is it still the Nürnberg Defense if you never actually gave any specific orders, and never actually received or acted on any specific orders, but still collaborated with hundreds of others, as part of your official USG employment, in the design and assembly of a great machine whose only purpose was to have a completely secret space hidden inside of it, in which the only things that could possibly ever happen were the commission of war crimes?

  23. Mary says:

    58- just as a WAG, I’d say they may try something like –

    Yoo only wrote a “contingency” memo and was never really briefed in on the specifics of the program. The NSA lawyers (some of them) knew some specifics of the program, but never got to see the memo. The actual “authorization” for the program was … Ashcroft. He’s the guy who can trump OLC (they only exercise authority delegated to them by him) and he was the guy who had access to both the memo and some of the program specifics (which he probably only understood in a muddledy fuddledy kind of way) or the ability to demand/require program specifics in excess of what was in the order he was signing off on every 45 days.

  24. TarheelDem says:

    I looked to see who is running the Department of Justice. The website is absolutely opaque. It is still all Bush era material except for the Attorney General page, which prominently displays Eric Holder.

    I looked at the Senate Judiciary Committe site to see who they’ve confirmed. There is one name: Eric Holder

    As best I can tell, it’s still the Bush justice department (after all the organization chart is signed by Alberto Gonzales in 2006) with Eric Holder sitting in some corner somewhere wondering when the Senate will get off their butts and confirm his staff.

    • R.H. Green says:

      Before reading your post, I ran a quick Wikipedia look at OLC and at Steven Bradbury. From what I can tell, he’s still the OLC. Further since the Obama pick for Solicitor Gen has not yet been confirmed, I’m curious who was argueing to the Supreme Ct that the Al-Marri detention case is “moot”. We’re getting strong arguments that the Obama administration has done little to establish a post-Bush legacy; is it possible the Bush burrows have control of the place? Inquiring minds want to know.

        • R.H. Green says:

          This is probably EPU by now, but thanks. After raising that question, I got the brilliant idea to look it up myself. I tried to reply to myself, but the moderator kept denying entry;(”She said that for an hour, An’ I hung up”).
          Kneedler’s bio is long and cuts across several administrations. Doubt if he’s a Bushbot, but as a career litigator, is probably accustomed to arguing as directed. This means one should look, if so interested, into who directed him as the Al-Marri case was being prepared; that would have been Clement until January, and then the Acting AG until Holder was confirmed. I’ve gotten interested in this question of whether Obama is using the Bush DoJ to carry his dirty water, or if the Bush DoJ is using the Obama presidency to do the same. So far it’s not clear, although good arguments can be made for each position.

  25. questioneverything says:

    What the hell happened to “no one is above the law”? Guess that still doesn’t apply. Who knows what permanently burrowed Bush lawyer actually argued this case, but if there is never any prosecution, the world, and many U.S. citizens who pay attention, will not forget. Hypocrisy is hypocrisy, regardless of political party. Every elected official better pay attention.

  26. MarkH says:

    After reading all the bizarro blog world articles, including one about a 9 year old Brazilian girl who was raped by her step-father and then the whole family was ex-communicated by the Catholic Church because they had to abort the fetus, I come here for sanity and real substantial issues. And, what do I meet, but “They Picked a Bad Week to Stop Sniffing Glue”. Oh well.

    I think Obama’s peeps are right. If you lay it on Yoo, then Bush & Co aren’t so guilty. Gotta lay blame where blame is due. Yoo needs to be ex-communicated from the Bar and that’s a different religion altogether.

  27. radlib1 says:

    The whole family wasn’t ex-communicated. Only the girl, her mother, and other relatives who helped her get the abortion. The rapist step-father escaped papal denunciation. After all, the Catholic Church is against abortion and “for life.” (But apparently, rape, incest, and the sexual abuse of children by adults or even priests is still condoned or conveniently overlooked by the Catholic Church.)

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