John Yoo’s Wrestling Match with the First Amendment

Among his other specious attempts at self defense in this column, John Yoo claims,

The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment’s requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "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."

Our memo had nothing to do with the First Amendment.

Pot, Kettle

Understand, one of Yoo’s central strategies in this memo is to strip the 2001 AUMF out of the context in which Congress specifically refused to authorize the use of "appropriate force" in the United States. Stripped from that context, Yoo claims in the memo that the AUMF explicitly allows for the "domestic use of force."

Section 2 [of the AUMF] authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or person. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." … This broad statement reinforces the War Powers Resolution’s acknowledgment of the President’s constitutional powers in a state of national emergency. Like the War Powers Resolution, [the AUMF] does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, [the AUMF] contemplates that the domestic use of force may well be necessary and appropriate. For example, [the AUMF’s] findings state that the September 11 attacks "render it both necessary and appropriate that the United States … protect United States citizens both at home and abroad." (emphasis Yoo’s).

By focusing on a "single out-of-context sentence," Yoo claims Congress authorized something it specifically refused to do–authorize "all necessary and appropriate force in the United States and against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" 9/11.

And, as Mary explains, even Yoo’s use of Near v. Minnesota is an example of Yoo stripping legal language out of context.

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.

John Yoo, having stripped this passage out of the context in which it appears in Near v. Minnesota to make the opinion say something it didn’t, then complains that it has been stripped of context in the press. 

So before we even get into whether this memo is about the First Amendment or not, appreciate the irony of John Yoo, master of flipping the meaning of existing law by ripping it out of context, bitching that he has been taken out of context.

Waging War on the First Amendment

Now before we look at Yoo’s use of the First Amendment in this memo, note how he envisions the military might be used domestically.

Military actions might ecompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects.

On its face, these actions appear to be prohibited by the Fourth Amendment, not the First–though Yoo’s long digression into discussions of Court interpretations of whether or not destruction of property amounts to a "taking" under the Fifth Amendment (a move he also references in his column) suggests he has thought about that Amendment, too, presumably in the context of whether or not the government can freeze the assets of those claimed to be supporters of terrorism. 

But in the age of the Internet–in which web pages are the published form of many documents–"seizing documents" may well entail asking an ISP to shut down a website or even seizing a server. In other words, the 21st Century equivalent to seizing documents may get you to the explicit issue at question in Near–whether the government could prevent someone from publishing something ahead of time.

The same is true of "intercepting electronic or wireless communication." As part of its efforts to intercept electronic communications, the government mined data to identify targets, thereby using how we speak (if not what we say, which may have been mined as well) to accomplish this goal.

So even just taking the way in which the government went about implementing the purposes Yoo envisions in this memo–including but not limited to seizing documents and intercepting communications–these actions "subordinate" the First Amendment to military operations in the United States.

And then look at two more mentions that Yoo introduces in a First Amendment case. As Mary mentioned, Yoo also mentioned this passage from Near:

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.

Think about how, in the addled minds of John Yoo or Donald Rumsfeld, such language might justify CIFA–the domestic spying operation operated through DOD that put together databases of those who, because they had exercised First Amendment rights to protest the war, were considered a potential threat to military operations. This kind of passage, taken "out-of-context" by the Bush Administration, gets you quickly to databases targeting peaceful Quakers.

And consider another Yoo reference to abridgment of the First Amendment.

State and federal court reviewing the deployment of military force domestically by State Governors to quell civil disorder and to protect the public form violent attack have repeatedly noted that the constitutional protections of the Bill of Rights do not apply to military operations the same way that they apply to peacetime law enforcement activities.


"[Whatever force is requisite for the defense of the community or of individuals is also lawful. The principle runs through civil life, and has a twofold application at war–externally against the enemy, and internally as a justification for acts that are necessary for the common defense, however subversive they may be of rights which in the ordinary course of events are inviolable." Hatfield, 81 S.E. at 537 … (upholding the Governor’s seizure of a newspaper printing press during a time of domestic insurrection).

Again, Yoo resorts to an example implicating the First Amendment to make his argument. 

Now, Yoo claims that those criticizing this memo haven’t read the whole thing.

In releasing these memos, the Obama administration may be attempting to appease its antiwar base — which won’t bother to read the memos in full — or trying to look good for the chattering classes.

What he doesn’t admit, of course, is that those of us who have read the whole thing will only be more and more convinced that Yoo aimed directly at a number of Amendments with this memo.

How nice that Yoo availed himself of the First Amendment he was targeting to claim that he wasn’t targeting it.

92 replies
  1. ApacheTrout says:

    In other words, Yoo really didn’t mean what he wrote, but means what he really didn’t say. Craptastic reasoning. Craptastic writing. And craptastic lawyering, when compared against real lawyering by folks like Mary, Bmaz, Glenn, and LHP. Another example of don’t believe your lying eyes, brought to you by today’s Modern Republican.

  2. BoxTurtle says:

    The only amendment the GOP seems to respect is the 2nd…and they misinterpret that one!

    Yoo must be feeling the pressure. As far as I can tell, there’s NO other lawyer defending his memos currently….not even Addington. The Law school where he’s supposedly teaching (THERE’S a scary thought) won’t comment on his writings and the dean has stopped speaking to the press on all things Yoo.

    I would like to ask Yoo under oath if he was ordered to come to a specific conclusion and by whom.

    Boxturtle (He’s a lawyer, let’s see how many ways he can say “I forget”)

  3. Spokane61 says:

    While Yoo deserves all the criticism that he is getting, let us not forget that it was Obama’s administration that interviened in California last week to support his immunity. It begins to look like Obama’s sense of what American Justice is and ought to be is the same hog-wash as Bush.

    We worked and voted for a change, this is not it. Obama supports Yoo. Obama published the memos but did not repudiate them. Obama still spies on us under FISA. Obama has refused to repudiate Rendition. Obama still believes that he can hold a person indefinitely without due process or any form of judicial review.

    Obama was in a former encarnation, a professor of Constitutional Law. So what ever happened with that?

    • BoxTurtle says:

      There’s a world of difference between supporting immunity and supporting Yoo’s actions.

      The idea that any gubbermint employee can be sued for actions taken in office is scary. Even completely unsupported suits can take years to resolve. Lawsuits would be used as a strategic weapon by those opposed to the political direction of the current admin. Chaos would result.

      Yoo needs to be charged criminally. I’d start with conspiracy, obstruction of justice, and professional malfeasance.

      Boxturtle (A war crimes indictment would also be nice)

      • Spokane61 says:

        I understand that you are a lawyer. What do you think about ‘Obama published the memos but did not repudiate them. Obama still spies on us under FISA. Obama has refused to repudiate Rendition. Obama still believes that he can hold a person indefinitely without due process or any form of judicial review’.

        • BoxTurtle says:

          Oh, goodness, I’m no lawyer. I worked for 25 years at Lexis, so I have enough of a understanding of the law to be dangerous and I’ve met a lot of lawyers and judges and such in the course of business.

          That said, I’m full of opinions! I thought that Obama HAD rescended all the torture memos. FISA IS the law, currently, so Obama can use it. My objection has always been the executive branch making law without congress. I don’t agree with everything congress passes, but that’s how it works.

          As for the president holding someone forever without due process, he can hold to that if he wants. The courts are finally taking notice and the only reason that won’t get overturned is if it’s mooted before a ruling.

          Boxturtle (I depend on bmaz and EW to correct my legal theories before they confuse others)

          • Spokane61 says:

            My deepest apologies for calling you a lawyer, I didn’t mean to slander you.

            I also am full of opinions.

            On the 7th I sent the following to the White House.


            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 intervened in the case of Padilla v. Yoo, 08-00035, U.S. District Court, Northern District of California (San Francisco), you forfeited 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.’

            While I support many of the domestic and economic things this administration is trying to do, I most emphatically do not support the imperial powers of the Executive.

          • freepatriot says:

            I have enough of a understanding of the law to be dangerous and I’ve met a lot of lawyers and judges and such in the course of business.

            I could say the same thing, about the lawyers an Judges an stuff

            cept I was dangerous before I unnerstood the law

            and I mostly specialize in personal criminal defense, so that limits my opportunity to learn …

            IANAL, thank jebus …

            I coulda turned out REALLY bad


        • bmaz says:

          What are you talking about? They were already withdrawn from effective status. There was nothing to repudiate. FISA was designed to be a legal mechanism for necessary governmental surveillance, that is indeed its reason for existence since first drafted. I can come a little closer to accepting your rant in the last sentence, but even that is really dependent on the factual circumstances of the situation. I am all for demanding accountability and propriety from Obama – you might have noticed that we do our share of criticism here, heck we have been battered for being too critical before – but the generalized and off base rants for the sake of ranting are not necessarily the best way to advance serious dialogue.

  4. WilliamOckham says:

    Scott Horton had an interesting comment on this:

    On the other hand, I’m delighted that Yoo has published a piece discussing the circumstances in which he prepared the memo. Now I expect to hear no invocations of privilege when he is called to testify about it under oath.

    I agree with that sentiment. I also believe that we need to move beyond the notion that Yoo’s work was sloppy or incompetent. Yoo’s memos were precisely executed to achieve particular policy goals that he knew were inconsistent with Supreme Court precedent. His job wasn’t to say what the law should be, but rather what it is. He deliberately and carefully constructed a legal fiction to support his and his employers policy aims. His work at the OLC was just as dishonest as his op-eds in the WSJ

    • readerOfTeaLeaves says:

      Yoo’s memos were precisely executed to achieve particular policy goals that he knew were inconsistent with Supreme Court precedent. His job wasn’t to say what the law should be, but rather what it is. He deliberately and carefully constructed a legal fiction to support his and his employers policy aims.

      FWIW, he appears to be the kind of authoritarian that John Dean wrote about in ‘Conservatives Without Conscience’; if the boss wants it, then the ‘right’ thing to do is deliver what the boss wants.

      The fact that it required taking things out of context underscores that fact, IMHO.
      But it also means that it’s critical to keep going after who ‘the boss’ was, and why ‘the boss’ made such a request.
      The boss has a lot to answer for.

      • drational says:

        FWIW, he appears to be the kind of authoritarian that John Dean wrote about in ‘Conservatives Without Conscience’; if the boss wants it, then the ‘right’ thing to do is deliver what the boss wants.

        I wonder how much of this is Yoo doing what the Administration wanted (as a lap lawyer), versus the Administration finding an academic who they knew would write opinions in line with what they wanted. In other words, Yoo is a kookbird who spouted about plenary power before Bush took office in 2000.

        To me this is the essence of the Bush years- seed the government with true believers so you never have to ask them to do anything against their (nonexistent) conscience. There is never a paper trail showing you tried to get someone to do something illegal, because they do it instinctively.

        • readerOfTeaLeaves says:

          To me this is the essence of the Bush years- seed the government with true believers so you never have to ask them to do anything against their (nonexistent) conscience. There is never a paper trail showing you tried to get someone to do something illegal, because they do it instinctively.

          We are living through unprecedented social changes, and the world is awash in issues of personal identity — whether people join the Taliban, or join the RovianGOP.

          The more confusing the world seems, the more desperately some (like Yoo) want simple answers. It’s the perfect acidic soil for extremism to flourish, IMHO.

          IMHO, there was no paper trail because they’d learned in Iran-Contra, and Cheney knew from his institutional experience, NOT to leave one. The lack of paper trail is deliberate. Memos have to take the form of written documents, otherwise I don’t think we’d even have Yoo’s Memos.

  5. BillE says:

    OT — What ever happened to this guy David Addington? Answer he can’t find a job. I thought neocon welfare would pick up his tab like Scooter. Oops that damn economy again.

  6. acquarius74 says:

    Thank you, Marcy.

    Yoo claims Congress authorized something it specifically refused to do–authorize “all necessary and appropriate force

    Why has there been no focus on the word appropriate in congress’s alleged authorization? IANAL, but to fulfill the requirement of appropriate, any force implemented must be lawful, i.e. appropriate. Force or measures forbidden by our Laws and treaties can never be appropriate.

    I asked about this before but it evoked no response. Please, one of you lawyers, tell me what you think about this point.

    • BoxTurtle says:

      It’s a weasel point, meaningless. Put there to make it seem like it wasn’t a blank check. I read the entire statement as “You can do anything you want as long as you can make a case that you need to”.

      Boxturtle (People who like sausage and respect the law should never watch either being made)

      • acquarius74 says:

        Waaaay back in the day I was a legal steno. It was strongly impressed upon us that every word had to be exactly as dictated and not out of place in the sentence. Indeed, even our punctuation was strictly monitored. There were no ‘weazel words’ back then. Example: the insertion or omission of the word ‘not’ could flip a case.

        If you’re right, I guess things in the legal realm have changed like everything else. That was also before the meaning of the word, is, was in question.

  7. pajarito says:

    Actual uses of Yoo memos:

    The Pentagon targeted and mistreated press.

    Pentagon hired ex-generals to distribute propaganda domestically.

    NSA sweeping eavesdropping and data mining.

    Journalists specifically targeted in illegal NSA surveillance and data mining.

    With Pentagon propaganda through the media, known military spying on journalists, and Yoo’s claim that 1st and 4th amendments are pixie dust…explains the dirth of reporting and exposure of the government crimes of the past 8 years. Journalists were frightened, subdued, and fearful of midnight disappearance.

    Truly, we had tyranny right here in the USA!

  8. chetnolian says:

    No-one has commented on Yoo’s references to the Civil War. There’s a clue to the mindset. There was a civil war and most of you, my friends, not to mention Congress in refusing to fund the activities, were on the other side from the Administration. Scary, ain’t it?

    • BayStateLibrul says:

      If I was a betting man, I’d say Yoo thinks the South won the war?
      He could leave out the Battle of Gettysburg… (In re: Blue v Gray)

    • BoxTurtle says:

      I see it is as another trial shot in the memo. Throw as much in as possible and it will take the courts that much longer to sort through it and rule. And it’s possible one of the trial shots might succeed. There are a LOT of GOPers still fighting the Civil war.

      Boxturtle (And those GOPers were BushCo’s prefered picks for Federal judgeships)

      • Minnesotachuck says:

        Little wonder that Mr. Yoo should be afraid to travel to Europe, and that he has left “lefty” Berkeley for the Argentine seminary-like confines of a small college in Southern California.

        I guess I missed that he’s left UC Berkeley. Last I saw, which wasn’t too many weeks ago, Brad DeLong was lobbying the Poobahs there to fire him. Where’d Yoo go? Pepperdine?

  9. freepatriot says:

    had yoo figured out a way to quarter soldiers in my house yet ???

    cuz that’s about the only part of the constitution the repuglitards haven’t pissed on yet

      • freepatriot says:

        I don’t have a basement, you could ask my wife (okay, so I don’t have a wife), just ask those guys with guns who live my dinning room

        and be careful, they’re really serious about that “perimeter” stuff


  10. Peterr says:

    In giving Yoo’s memo a fast glance, I could not find any references to Youngstown v. Sawyer. Here you’ve got a case in which the Executive branch got slapped down in wartime (Korea) for overstepping its authority and ignoring the expressed will of congress. Why am I not surprised that this isn’t mentioned?

    The fact that the very first footnote in Yoo’s memo cites Scooter Libby should have been a big tipoff.

    • bmaz says:

      Wait. Yoo mean that Germ Boy is not better precedence than Youngstown? Come on now, it was the heat of the battle, enemies at the gates, state of war yadda, yadda, yadda.

      • Peterr says:

        The battle to which you refer is the one between Addington and Congress, right?

        “Enemies at the gates, state of war, yadda yadda yadda” sounds like how Addington would have reacted when told that Daschle would not go along with the Administration’s first version of the AUMF (described in the link in Marcy’s post where she talks about Congress specifically refusing Bush this domestic military power).

      • freepatriot says:

        since yer hear:

        are we gonna have the chance to politely discuss the over-realization of perfesser Naismith’s dream any time in the coming week ???

        or have big blue an the state of Arizona been eliminated from that already ???

        (duckin & runnin)

          • bmaz says:

            ASU is in pretty clearly; the better issue is Arizona (who has not missed the tournament in 26 years). Arizona is in much the same position as Michigan, although Arizona had a lot tougher schedule and has more wins against top 20 teams.

  11. Leen says:

    “Section 2 [of the AUMF] authorizes the use of “all necessary and appropriate force” against the designated nations, organizations or person.”

    folks here at FDL have explained why FISA has and should be used and provides all of the means to wiretap within the law. But if an administration determines that enemies (even U.S. citizens) “all ready in the gates” are able to listen in to internal U.S. communications and would be able to determine who would be up for wiretapping via the FISA process….

    What I am trying to say can you folks imagine any reason that the FISA process could fail due to new technology that a determined enemy had access to?

    Who in the hell were they after?

  12. earlofhuntingdon says:

    As does David Brooks, John Yoo can’t construct his arguments in favor of unbridled executive power without knowing the rules specifically designed to prevent it, and not without illegitimately ignoring or gutting them of their essential purpose.

    That is conduct beyond negligence, a point reinforced by Mr. Yoo’s status as a tenured professor of constitutional law at one of America’s top law schools. Mr. Yoo’s had to be intentional, knowing conduct, which amounts to aiding and abetting the underlying behavior. In this case, serial violations of the law and significant criminal statutes.

    Little wonder that Mr. Yoo should be afraid to travel to Europe, and that he has left “lefty” Berkeley for the Argentine seminary-like confines of a small college in Southern California. With its “outdated” views that the law must be obeyed even by the high and mighty, Europe might ask Mr. Yoo to stay for much longer than he intended.

    As for Mr. Obama’s DoJ having “better things to do” than look at the past, that seems odd, because all criminal investigations look at the past. Tom Cruise’s film, Minority Report, to the contrary, there is no Future Crime Unit. Even in fiction, that, too, was corrupted by the desires of men.

  13. Mary says:

    19 – the incredible thing about his references to the Civil war is that he completely fibs about the law the came out of the civil war experience. Contrary to his statements:

    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. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts.

    the actual LAW that evolved from the Civil war was that, despite the state of readied self defense in which the nation found itself, as long as courts were open and operating in an area, the fourth amendment DID apply. Scalia pointed this out for Yoo again in his Hamdi dissent.

    Go find the time during which any of unconstitutional surveillance program was in effect (or during which time Arar was disappeared to Syria or Padilla and al-Marri were sent to military dentntion with no UCMJ or other due process rights) when the applicable US courts were unable to function.

    But in any event, unlike the Near case where here “merely” misrepresents, he cites no authority for his civil war fantasy because the existing Sup Ct case is dead on point to the contrary.

    Re: Addington and the link to the Times piece, I think they too easily say the reason the guys are having problems is that their work product isn’t mainstream. Lots of places don’t bother much with that if it makes the right people happy. I have to wonder, as I’ve spec’d since Gonzales left, if there isn’t more of an issue along the lines of pending investigations into whether or not to present state bar charges seeking disciplinary action. That is something that does make even the very political firms get a little cringey over – no sooner putting on a guy than he gets disbarred in a splashy headline.

  14. JohnLopresti says:

    I wonder, like @12, how much Yoo participated in the planning for 1stAmend related policies which developed, the various forms of hype and misdirection. My first impression was it was an ancillary theme for him, but one to which he was contributing some thought. Maybe more will appear if some of the still suppressed memos are published, as Judge White suggested last week.

  15. earlofhuntingdon says:

    Yoo’s description of what the military be allowed to do domestically is primarily law enforcement, that which they have been specifically prohibited from doing since Reconstruction after the unCivil War.

    It’s all of a piece in the CYA activity of converting the entire world to a war zone and all threats to military threats, so that all responses can be the use of force controlled by the military, whose C-in-C is el presidente. And they say bootstrapping is a metaphor primarily used in market economics.

  16. TheraP says:

    From Yoo’s memos and his current writings it sounds like the guy is operating from a very tiny corner of a huge room. A corner no one else is willing to sit in with him. And from which he seems unwilling to budge.

    I hope he has to spend the rest of his life attempting to defend that tiny corner. He doesn’t see the corner as part of the room. And apparently he won’t consider that the corner has any “context” in the room. Context is his to choose or not – says he!

    Naturally, I hope he gets to sit in the corner of disbarment as well. A cell would be nice too.

  17. JThomason says:

    Its interesting to see the reaction to Yoo’s work calling him out as being unqualified from the point of view of the arts of practicing law. Remember he clerked for the Supreme Court so on some level he was adroit with the material even if his methods depend on the tricks of high sophistry.

    I have been trying to locate a critique of the methods of Chief Justice Roberts that was posted last Spring in comments over at Balkinization. It had numerous examples of the techniques in Justice Roberts jurisprudence in the Supreme Court opinions he has authored that depended on what a pure logician would characterize as “fallacy.” (I will post the link if I find it.)

    The risk of relying on “dicta” as binding is certainly something that should be foundational in any earnest critical legal thinking, and yet Yoo is certainly not the first activist advocate to have crossed the Rubicon in this regard. And of course this is juxtaposed in an ethos of thoroughness that calls upon an adversary to move ahead to a tribunal opinions contrary to the position being advanced where the standard of practice of a proponent has been deficient. In a judicial context the standard is, of course, to brief completely (hello Youngstown and Milligan). If the judiciary will not police these excesses in a scholarly and forceful way the line between law and politics will be increasingly blurred. The irony here is that Yoo’s opinions released last week were never intended in the first instance for judicial review. Bush et al. merely hoped to establish a private jurisprudence as the legitimacy of purchasing this except out of the executive branch has frustrated those of Cheney’s ilk from time immemorial. Roberts is not subject to “effective” academic review, however, and so of course his work is irrefutably “legal opinion” and afforded the imprimatur of his Constitutional status.

  18. Jkat says:

    For example, [the AUMF’s] funings state that the September 11 attacks “render it both necessary and appropriate that the United States … protect United States citizens both at home and abroad.” (emphasis Yoo’s).

    re: “funings” ?? is that an esoteric legal term or a typo ??

    • LabDancer says:


      The word “findings” appears in what looks to be the particular phrase lifted from Yoo’s memo.

      That may suggest “typo” — except that we might wish to consider that, as Commander in Chief of this blog, Fearless Leader may enjoy the unfettered right to deviate from prosaic spelling conventions.

      There is precedent for this grant in some academic writing on the works of W. Shakespeare, in relation to which there has been noted the existence of a distinct paucity, & in a number of respects a total absence, of support for his having adhered strictly to a policy of employing words that actually existed prior to his own employment of same. In the interests of science, critics of this deference to Shakespeare’s creative sense have observed that the historical record as to the full extent of words which then comprised what might be called the ‘English language’ was materially affected by such factors as the existence to that point of a number of strong regional dialects substantially distinct from what generally has been accepted as qualifying as ‘English’ as early as the Industrial Revolution & by widespread functional illiteracy [both considered so severe as to justify the undeniably brutal policies of the program that led to the creation of the King James version of the Bible].

      In addition to the above, & indeed quite apart from it, “funings”, in both appearance & sound [Try it out loud!] seems a splendid word to describe such abominations as the AUMF.

        • LabDancer says:


          Well of course, this goes to the marvelous adaptability of the word: employed in this context, it surely must be pronounced as the former; whereas, when used in characterization of such as the arpeggio to a typical question of a guest by such as S. Hannity of FoxNews, the latter would seem the more euphonious variation, reflecting on the lack of independently verifiable fact in the question’s premise.

          • JThomason says:

            I would think I have found a sentence but I would think the choice of pronunciation would depend on the keenness of criteria applied, so: Bring the facts before the court let the funings fall where they may. The nuance of tongue would be similar to that reserved for “voir dire” with pronunciation telling a judge all he or she might need know about the character of the advocates before him.

      • emptywheel says:

        Ah nuts. And I took some even stupider typos out earlier.

        I will be very happy when tehre’s a good copyable version of these damn things bc I keep making errors in transcription.

      • Jkat says:

        awwright LabDancer .. i think that’s a perfectly brillig explanation .. and i find myself throughtly impressified by your azure assemblage of the rules and history of literary lexical deviation norms as currrently and perviously accepted in this venue .. i bow to .. no .. i flat out worship your stance on the integrity of the issue .. and am throughly impressed by the expression of assembled mimsy you have presented.

        calooo ..callay .. oh frabjubous day …

        [don’t forget to exhale ??.. lol]

  19. ncaleb says:

    The push toward a unitary executive started long before Yoo started hacking it up. Check the Supreme Court and you’ll see a pro-corporate anti-citizen agenda in full legal view. I’ve been reading through the history of standing doctrine over the last few days and have been amazed by how far the Supreme Court has gone to exclude the public from exercising oversight in the courts, even when it is specifically authorized by Congress! Originalism is code for authoritarianism; pure and simple. Lest we forget Justice Scalia’s appearance on TV where he said that torture didn’t count as cruel or unusual punishment under the 8th Amendment… his reasoning? He thinks it isn’t punishment if the object is to obtain information, and in the alternative, you’re wrong.

    Though I applaud the efforts of Justice Kennedy in Boumediene to reinstitute basic principles of human rights during “wartime,” why did it take so damn long?

    The only way that the trend toward unitary executive will stop is if we start putting people in jail for knowingly subverting the republic. But… no executive wants to do it for fear of political retribution in the future. Will be interesting to see what happens if some international political body accuses the Bush Admin. of war crimes.

    • bmaz says:

      That is exactly right as to the narrowing of permissive standing. Part and parcel with that has been an enlargement of the protection of the government/sovereign and its various affiliates through the application of immunity and qualified immunity.

  20. JohnLopresti says:

    Conceptually with Yoo, as with Addington, the issue of ruling from marginalia may be important, and was suggested in several places on the internet over the past months; Scalia mentioning an EO in his own writing; the fictitious legislative history colloquy of Graham and Kyl in re Hamdan; Coburn’s questioning of Kagan regarding respect for EOs.

  21. Mary says:

    12 – IIRC, it was Stephen Grey who had a bit in his Ghost Plane book about several journalists (like Chandrasekaran who wrote Imperial Life in the Emerald City – way after the info in it could do much good) who seemed to be getting started on the rendition to torture stories and then dropped them cold and were very evasive with him when he tried to follow up with them on why they dropped the story.

  22. JThomason says:

    As has been noted the curtailment of standing is reflected in legislative movement as well in applying population tests to class action litigation and income tests to discharge in bankruptcy, for instance.

    • ncaleb says:

      Though not a standing issue, my favorite anti-plaintiff constitutional interpretation of late is the limiting of punitive damages to less than ten times compensatory damages. As far as I can tell, this was the only deterrent to companies making “cost of compliance with the law v. cost of lawsuit” calculations. Incredibly irresponsible and baseless.

  23. Mary says:

    37 – And from which he seems unwilling to budge

    I really do think that, ideologically, he’s managed to sell himself on the concept that the CIC (at least, a Republican CIC who recognizes Yoo as a worthwhile advocate) really does have a plenary power and in that regard, he’s on board with the concept that the courts really have no say so or power – that he, as an Executive branch lawyer for the CIC with plenary power, is just as entitled to interpret the law in that venue as the courts and that, like Congress, the courts can be ignored if they are intefering with the CIC’s plenary power.

    His reliance on Hamilton in his op ed is really instructive there – I’m no polisci kid or political historian, but I don’t think you get much more of a monarchist among the founding fathers than Hamilton. He wanted the Fed Gov to appoint state governors, and for Senators and the President to be elected for life – and IIRC his views on dueling didn’t turn out all that well either.

  24. earlofhuntingdon says:

    “Ruling from the marginalia” is a variation on ruling by fiat or secret law. It is a manipulation of the “law” once prominent in Maoist China and Soviet Russia.

    Marginalia are hard to find and not the usual sources of law. They have little precedent, which creates an open field for argument once you get past the reasonable incredulity that such rules should be generally binding or authorizing at all. It is making law in secret and in the open, which makes it difficult to comprehend and difficult to argue against, at least where the sovereign controls the venues for debate (a cooperative MSM, judiciary and Congress).

    It is not open government or open laws, openly derived. As Scott Horton and Glenn Greenwald have been saying, it is a form of dictatorship.

  25. BoxTurtle says:

    Bush’s signing statements sent to trash can where they belong. Obama says he’ll use his own, but rarely.

    We’ll see. There’s been a LOT of careful wordsmithing coming from the Whitehouse. That, at least, hasn’t changed.

    Boxturtle (You may think you understand what you believe it was I might have said)

  26. Petrocelli says:

    Thanks dakine, I just came by to tell the great minds over here just that, and to ask them to pose questions to Mr. Jaffer about OLC, Yoo, etc.

    • macaquerman says:

      Interesting, but the truest thing she says is that there’s not enough data points to determine what Obama’s thinking.

  27. Mary says:

    OT – but a Pakistani court has gotten involved in the Aafia Siddiqui case.

    Per the BBC,
    Islamabad’s High Court has now issued directives to recover Dr Siddiqui.

    “The government is directed to ensure that the foreign ministry moves quickly to bring Dr Aafia Siddiqui to Pakistan,” the court said in its judgement.

    The court also directed the government to approach the International Court of Justice if talks with US authorities on the matter failed.

    The court also instructed the government to immediately determine the whereabouts of two of Dr Siddiqui’s children who remain missing.

    The BBC article refers to the fact that she was earlier ruled mentally incompetent to stand trial, but leaves out any reference to this:


    A federal prosecutor said Monday that two psychiatrists who have examined Aafia Siddiqui, a Pakistani neuroscientist charged with trying to kill an American soldier and F.B.I. agents while in custody in Afghanistan, said she was not suffering from psychological illness that would render her unfit for trial.

    on Monday, after a prosecutor in New York cited the new psychiatric reports, which have not yet been made public, Judge Richard M. Berman of United States District Court in Manhattan said he might be ready to consider setting a trial date

    Pretty much no reference in the American press to her disappeared American children.

  28. Mary says:

    60 – I liked the fact that Leahy has started to tell the Obama crew that you need to read a page before you turn it, but this was what I liked best and is pretty much on topic here – Lithwick rasing the Nuremberg defense on behalf of the torture crew, in the context of Bradbury’s recent memo:

    People just doin’ their jobs. Former Bush administration officials do themselves no good when they simultaneously argue that their actions were lawful and necessary—and saved our lives many times over—and that they should also be excused because they were terrified. Stephen Bradbury, then acting head of OLC tells us that the appalling work in the newly declassified memos should be filtered through the prism of temporary insanity

    • macaquerman says:

      Oh, I quite liked the whole thing and really like the things i hear from Leahy. I just can’t tell about Obama.
      Switching topics with you, do you have any ideas as to where Siddiqui’s been?

  29. Mary says:

    63 – Not really. I find the story of how she was brought to the US VERY implausible, though, and I just can’t believe a situation as they have described would not result in her 14 yo American citizen son haveing not been returned to the US with her. The fact that they deliberately separated them, then turned him over to Afghanistan officials and were content with the ‘we’ve lost him’ response is just too strange – esp since as soon as Pakistan made noises about the boy, he was turned over to them in a heartbeat.

    I don’t know whether she was a very bad person or an innocent person with some strong beliefs and a prior spouse with bad relatives. I do absolutely believe that the US knows more about her and her kids than they have let on. And since the US was the last known entity to have control over KSM’s children who have also disappeared, I don’t get warm fuzzies. When you look at how angry Whitehouse gets, I tend to think children have featured in briefings he has received. All this was going on at about the same time that the US military was also kidnapping women and children in Iraq and using them as leverage to get husbands and sons to turn themselves in, a very well documented practice that is a war crime and yet carried no consequences – and one of the MI whistleblowers, Provenance, indicated other instances of Iraqi children being treated harshly to secure statements from their parents – and then there was Yoo making sure that he got the “testicle crushing of children” into the arguments of what is not “torture.” All of which makes me wonder.

    • macaquerman says:

      Thanks, he said, when no longer engaged in perastaltic unheaval.

      I am curious as to why the Pakistanis demand custody as soon as it seems she might stand trial here.

  30. freepatriot says:

    Tsar, Csar, Ceasar, Kaiser, etc

    go ahead and say it

    Tsar, Csar, Ceasar, Kaiser, Kaiser Soza …

    and then

    we’re right back to the usual suspects …

      • LabDancer says:

        Interesting. For myself, heretofore in summoning Trollslayer, I have supposed it more prudent to use somewhat less of an … um … laut touch.

        • JThomason says:

          All I am sayin is that I have heard it said that a lawyer would be laughed form a court room in Northern Mississippi if the the depended upon pronunciation of “voir dire” didn’t come across as something akin to “vo deer.”

          But as always Mary has called attention to things far weightier.

  31. Blub says:

    I thought that his wrestling match was with the entire Bill of Rights.. ok, maybe not the one about quartering troops. I don’t think shrub tried to quarter any troops with anybody.

    • foothillsmike says:

      But our good buddies in Israel think nothing of kicking Palestinians out of their homes so they can take their breaks.

    • Jkat says:

      it’s not .. imo .. whether or not bushie boy tried to “quarter any troops” it’s that his administration WAS claiming the power to do so on his whim .. it’s not the act .. it’s the principal of the damn thing ??

  32. Ted666 says:

    How is it that this little lickspittle hasn’t been disbarred yet? Better yet let’s start a pool and buy him a vacation to Spain.

  33. Mary says:

    79 – I’m not saying for sure things happened, just that I am very suspicious.

    Pakistan and Siddiqui, even what little I know, are very complicated. She disappeared (or was disappeared) with her children, including one infant, while still in Pakistan and is a Pakistan citizen I believe. Much of the following you may already know, and it’s a long, kind of roundabout answer to your question, but I think it needs the context to make sense.

    At the time Siddiqui disappeared, her family made lots of noises about her being taken by Musharef’s crew and then turned over to the US. [At one point there were statement by a western journalist that they had seen her at a US base IIRC] A lot of other Pakistanis were making the same kinds of allegations at about the same time about other disappeared relatives and friends. Eventually, one person managed to get before the chief judge (I don’t know the actual terminology) of the high court in Pakistan, Chaudry.

    Chaudry issued a ruling that the Pakistani government had to account for these disappeared people – didn’t necessarily have to turn them over or make them available to family, but had to account for them. Meanwhile there were allkinds of demonstrations going on, police retaliation, etc. and eventually 100 or so people were released and their stories just added fuel to the fire as they told stories of torture and many others being held.

    So Musharef suspended Chaudry from the bench, setting off the “Penquin Revolution” as lawyers in their suits took to the street rioting over the actions. There were ensuing shenanigans with reinstatements and subsequent dissolutions, etc. but the nuts and bolts is that Musharef has never really accounted for people as Chaudry had required.

    In Pakistan, a lot of people either believe that Siddiqui is innocent, or, whether they think she is guilty or not, they are nonplussed that she AND her children would have all been disapppeared and they pretty much believe that’s what happened. So they have had request after request out to the US for an accounting. None of them believe the American version of how she came into American hands and once she was here, Pakistan began pressing for diplomatic access to her and sent a group to see her in the hospita. Pakistani MPs have over and over said they would get her back (they are apalled at stories of things like body cavity searches being conducted on her and things likely to incite). She appears, from foreign (not US) reporting, to be a kind of cause celebre over there. As a matter of fact, she has ranked as a big topic of conversation between the Pakistanis and Holbrooke since his appointment, with her sister being granted a meeting with him.

    Both Chaudry and Siddiqui are also topics that are getting stressed for political purposes it seems to me by the Nawaz Sharif faction in Pakistan.

    Still, things are so very volatile in Pakistan, that political posturing or not, there are a lot of matches out there that can cause fires. So Pakistan is making noises to get her back in large part bc she is a hot and volatile topic. And IIRC, her showing up in Afghanistan and then being shipped to the US came right on the heels of info coming out of Pakistan that the high court there was going to revisit the topic of disappeared Pakistanis and require info on them be released.

    all fwiw, which may not be much – not all dots really connect, but seem tend to seem like they should.

    • macaquerman says:

      As always, thanks.
      I read a couple of (English-language)Pakistani papers regularly and she was certainly a hot topic when she re-appeared, but hasn’t merited mention in months. It’s not popular demand. I hesitate to join the dark secret crowd, but I wonder if Pakistan might be worried about something other than her well-being.

  34. Basharov says:

    I’m surprised that nobody has mentioned Yoo’s disingenuous use of a one-hundred-year-old West Virginia state case, decided by the West Virginia Supreme Court, titled Hatfield v. Graham, 81 S.E. 533 (W.Va. 1914), to support his claim that “the constitutional protections of the Bill of Rights do not apply to military operations the same way that they apply to peacetime law enforcement activities.” First, if you read the case, you’ll see that it’s based on the West Virginia state constitution, not the Bill of Rights or the U.S. Constitution. Second, it was a case that involved the right of the governor of the state to enforce his executive power in a part of the state where law had broken down, an insurrection was in progress, and martial law had been declared. After he closed down a socialist newspaper that was printing socialist propaganda and distributing it in the area under martial law, the owners of the newspaper sued him for damages to their printing press. The West Virginia Supreme Court dismissed the case on the grounds that (1) the governor couldn’t be sued for doing his job and (2) anyway, he had the right to do what it takes to put down an insurrection and to enforce martial law, which includes closing down a printing press.

    That Yoo dredged up a century-old case from a marginal state like West Virginia to support his claims of unlimited Presidential power shows how weak he knew his argument was. In some ways, using this case in a Justice Department legal memo as support for Yoo’s theory that the President, in his role as Commander-in-Chief, can disregard First Amendment protections (let alone Fourth Amendment ones) inside the United States is even shoddier work than claiming dicta in Near v. Minnesota is that case’s holding. If he’d presented work like this in a memo in the law firm I worked for, he would have been fired.

    And this guy was a law clerk for Clarence Thomas? Somehow, I’m not surprised. What’s really depressing is that he’s now teaching a new generation of law students (either at Berkeley or Chapman) the fundamentals of Constitutional law. Here’s hoping he gets disbarred fast before he succeeds in producing another flock of Monica Goodlings.

    • JThomason says:

      This really gets to the essence of the necessity of a practicing advocate at bar needing to establish a reputation for credibility in a court by avoiding dicta and citing applicable law to an issue. If this is lost an advocate likewise may lose the power of being able to hold a court’s attention and trust. It is no trivial matter in the realm of practical justice. Of course practitioners of speculative justice are inexperienced with this necessity or just feed blithely on government jobs, political certainty, prosecutorial immunity and the presumed unassailibility of their “good faith.”

      The binding nature of precedent is something some courts take very seriously and being misled as to which decisions are binding or floating invitations to accept specious legal arguments is not something many judges take kindly or lightly.

      Accordingly I am sure your reference to a job depending on the legal integrity of arguments prepared is in no way an exaggeration.

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