The Yoo Tumor

John Yoo is a cancer on the Constitutional body politic of the United States, and he won’t go away. For some inexplicable reason, Carrie Johnson, and her editors at the Washington Post, have decided to fluff the one man self rationalization and obfuscation tour Yoo has been on as of late:

Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.

The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up.

Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee’s constitutional rights. This month, the Justice Department’s inspector general described Yoo’s legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo’s approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president’s authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics’ arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."

There is nothing whatsoever new in the story, save perhaps for the information that even if the long delayed OPR Report recommends bar discipline against Yoo, he is unlikely to suffer any consequences because the only state he is licensed in, Pennsylvania, has a five year statute of limitations on ethics infractions. Johnson and the Post, of course, do not discuss whether the Pennsylvania statute may have been tolled because the information was not publicly available for a good deal of the time.

The Post article is beyond disingenuous with the way it blithely equates the pros and cons of Yoo and his work. It even points out the recent decision in Federal court in NDCA by Judge Jeffrey White without noting in any detail that White carved Yoo’s work up like a Butterball turkey.

John Yoo arguably has done as much, if not more, harm to the Constitution than any government lawyer in history. Yoo authored legal reliance opinions eviscerating the Fourth Amendment and authorizing the implementation of a state sponsored torture regime. If the Washington Post is going to fluff Yoo, they ought to at least be intellectually honest enough to give some credible billing to the moral and legal hell he hath wrought. Apparently, it is asking too much.

  1. Loo Hoo. says:

    Apparently, for some unknown reason, (or at least a reason I don’t know) the WaPo is willing to continue to sink.

    John Yoo arguably has done as much, if not more, harm to the Constitution than any government lawyer in history.

    Agreed. But in order to consider him the mastermind, we’d have to assume that everyone above him in the White House and all of the security services never dreamed that what he authorized was questionable.

    Yoo is a criminal puppet.

  2. bobschacht says:

    The trouble is that major news organizations no longer know what “fair and balanced” means. Part of what this indicates is that there is no longer any public consensus on what is “right” and “wrong.” I’m not referring to some cosmic yardstick here. I’m referring to a cultural consensus.

    But what is truly alarming, to me, about this shattering of the cultural consensus is that the Constitution of the United States has lost its primary place. The culture now apparently views it, like George Bush, as “just a piece of paper.” Defending the Constitution is no longer a big priority to our Congresspersons, even though they take an oath of office to do so.

    Instead, “Public Safety” has now been elevated to a priority equal to, or exceeding, that of the Constitution. The public consensus is shifting, and not for the better.

    The MSM are no longer defending the Constitution because it is no longer seen as a fundamental priority, on which all other priorities are based. And the MSM don’t defend the Constitution because the Presidency has not done so, for about 8 years. And neither has Congress. Only the Courts still seem to act as though defending the Constitution is Job #1.

    Yoo is a symptom of a deep cultural malaise.

    Bob in HI

    • oldoilfieldhand says:

      “The MSM are no longer defending the Constitution because ” they are paid stenographers. They do what they are well paid to do, shill for their the corporate masters.

  3. JasonLeopold says:

    I was waiting around tonight and checking to see when you guys were going to write something up about the story. This is a really good counterpoint, and then some, to the Post story. It’s very strange that they chose to spotlight Yoo with a feature story and that’s really how it reads like a profile/feature story that one would expect to see in the “living” section of a Sunday paper. For me, the only news in there was that Yoo’s wife is the daughter of Peter Arnett.

  4. Jeff Kaye says:

    Disgusting. The article’s aim is to paint Yoo as a pugnacious underdog. Sickening.

    I guess Yoo learned from Nixon. Will we see, in the end, Yoo’s Checkers speech?

  5. Jkat says:

    amazing isn’t it .. that someone with such a demonstrated warped perspective on the law is still employed teaching it to others .. no ?

  6. Helen says:

    According to Peter Arnett’s wikipedia page, his daughter Elsa, who is married to Yoo, is a reporter who interned at the Washington Post.

    Jeepers, what a coincidence.

    • BoxTurtle says:

      Meaning Yoo likely didn’t have to sponsor any dinners at the publishers house to get his op ed pubished.

      I believe you’ve hit on the connection.

      Yoo is neither underdog nor mastermind. He WAS a useful tool, carefully selected,skillfully used and finally abandoned when he could no longer be of use. Wingnut welfare is trying to help him though and the fact they got him a job in the legal profession says they’re having some success.

      Boxturtle (Was cheney’s man sized safe really a “tool” box?)

        • BoxTurtle says:

          Nah, I’m one of the folks that thinks Cheney was really in charge of everything that mattered to him and Bush the Idiot did whatever he was manipulated into doing.

          Boxturtle (That as a defense would have traction with a jury)

    • cinnamonape says:

      Elsa Arnett and John Yoo. Sorry, I don’t understand that marriage? On the one hand he says they disagree on everything he’s ever done on legal interpretation and policy, then he thanks her at every opportunity (books, lectures) for “giving the strength to express them”. Maybe Arnett has been scarred by the divorce of her parents during her childhood so badly that she’s determined to stay with Yoo, no matter what he’s become?

  7. FrankProbst says:

    For some inexplicable reason, Carrie Johnson, and her editors at the Washington Post, have decided to fluff the one man self rationalization and obfuscation tour Yoo has been on as of late…

    I’m willing to give the Post the benefit of the doubt on this one. This piece strikes me as a classic “source greaser”. They’re buttering him up so that he’ll talk to them on the record when the next shoe drops. And the more Yoo talks, the worse he looks.

    • Mary says:

      They’ve been not only allowing him on the ed page for a long time now, they’ve been actively supporting him and other loyal Bushies on those pages. I used to love the WSJ, but I never pick it up anymore.

      It would be nice, though, to see the “we’ll make sure it’s a friendly forum” emails. He may be giving speeches to critics, but interviews – not so much.

  8. Mary says:

    I’m sure Bernie Madoff would have engaged in equally polite, but firm, conversations, regarding investment strategies.

    If he were out of jail.

    I’d really like to see how he gives a speech to the “critics” of his views – Paine, Jefferson … To that extent, the article offers up something new – who knew John Yoo was a Medium.

  9. Mary says:

    OT but related.

    The cancer description is apt, but I think really something more viral is an even better description, bc the infection has run amok throughout not only the Bush, but the Obama DOJs. We now have a DOJ and legislative and executive branches that are reinvigorating abusive military commissions; that have “rejected” torture memos by enacting amnesty legislation and non-prosecution policies and shipments to Bagram coupled with arguments that “what happens in Afghanistan, stays in secret in Afghanistan;” we have a architect of Camp Nama now elevated to running the AfghaniPak “theatre” of “war we never declared on Pakistan and non-war of our occupation of Afghanistan” etc.

    The belated installation of Koh at State and still non-appointment of Johnson at OLC haven’t really done much to derail the Executive and Legislative embrace of “preventive detention” discussions and policies as paraded before Congress by Johnsen(Jeh, not son, Dawn) and Kris, either or both of whom would have, once upon a time, been seen as principled lawyers who would have served as counterpoints to the kind of Clockwork Blue proposals that are now being mainstreamed.

    The concept of getting rid of their “Yemeni Problem” at Gitmo (where one crazy guy is the sole or only important withess in dozens of disappearances and torture detentions, but where we can’t bring the detainees to the US – thanks to Democrats – and where we can’t release them to Yemen, ostensibly bc of human rights issues but more so bc Yemen has a track record of turning loose those sent to them) by just shipping the Yemeni GITMO population to Saudi Arabia:…..nis-1.html
    is indicative of how widespread the virus has become. Obviously, Saudi Arabia (one of the few institutions that beheads more regularly and in greater number than al-Qaeda) won’t have the human rights issues of Yemen, what with having all that nifty “rehabilitation” stuf in place.

    Think that one through. We have people at GITMO who we never had any right to send to GITMO – they were by and large not taken on any battle theatre setting and we have no military or criminal charges we can validly make against them. So the Obama DOJ solution is to en masse load those guys in a shipping container and send them to Saudi Arabia – another country with no tie to them and no grounds for us to send them there – so that they can be physically and mentally reprogrammed. The “re” part being a little nebulous, what with having no evidence of any criminal “pre” programming to start with.

    And I guess we may end up avoiding our little British problem by hopping on board the existing “protocol” Saudi Arabia and other countries have in place now:

    In the US-led “war on terror” launched in late 2001, Saudi Arabia became part of an international web of renditions – the unlawful and usually secret transfer of suspects between states.121 This has involved the transfer of Saudi Arabian and other nationals to Saudi Arabia, and their detention there, and forcible transfers of suspects from Saudi Arabia to other states.
    The arrangements include a protocol of security co-operation between Iraq and nearby countries to suppress terrorism, secret entry (tasallul) into contracting countries, and organized crime. The protocol was signed in Jeddah on 18 September 2006 by the governments of Iraq, Saudi Arabia, Bahrain, Egypt, Iran, Jordan, Kuwait, Syria and Turkey.122 It provides for security co-operation between the contracting parties but includes no human
    rights safeguards for those who fall within the remit of the agreement and who are subject to forcible transfer from one state to another. As well, the protocol prohibits the divulging of information exchanged between the contracting states when implementing the agreement without the express consent of states involved.123

    It’s not so much that Yoo was a cancer, as a Purple Plague that is consuming red and blue alike. And it’s a plague that reminds me of a disease horses get, Strangles. Once the Strangles virus hits, it completely invades its environment. Whether the animals survive (these days, many will) or not the infection burrows into the very soil, lying dormant to be resurrected over and over in future outbreaks.

    That’s the Obamaco approach of “we should be allowed to be horrific, bc we were left with hard problems and golly, if you just let us fix them by whatever means makes it ez for us, then we’ll be so much better in the future.”

    All this torture and undermining of the right to a fair trial and due process – the concept of shipping people without trial to Bagram and Saudi Arabia to be ‘dealt with’ – all of it, it’s an infection. Obama had a shot at sequestering it in a concrete stall and sterilizing it, but instead he chose to turn it loose and allow it to invade the soil of the nation. Now there’s nothing other than an unlikely scorched earth approach that will ever address the virus. It owns us.

    • NMvoiceofreason says:

      So very, very true – every word. A plague, of biblical proportions, a pox upon all of our houses.

    • klynn says:

      Sorry for the OT bmaz.

      Mary (EW and Jeff Kaye),

      I would be interested in your take on the links I posted at Morning Swim. The collection of links has me a bit confused about US ME policy and what might be going on?

      Much of this ramped up as we were getting ready to dismiss the AIPAC spy case.

      The timing of the incidents since May has been curious.

      bmaz, nice piece above on Yoo.

      • Mary says:

        I don’t really have a take on them, other than to think you’ve added another layer to it all. I wasn’t aware of the other sweep or of the ethnic background of the rabbis arrested here.

        More OT, but a bit related to the link…..r_slayings
        I put up last night (which was about a unit that was mostly in Iraq, not Afghanistan)

        Apparently Karzai isn’t that happy with the existing SOFA.

        Karzai said the presence of U.S. and international forces was in the Afghan national interest but should be “based on a new contract” that would minimize civilian casualties, limit searches of private homes and restrict detaining Afghans indefinitely without charge.

        That’s pretty ironic, that as Obama is looking for more ways to indefinitely detain without charges, a 4th world country like Afghanistan is getting oogy over it. And apparently, at a time when Obamaco’s DOJ thinks the way to solve their problems is to ship people unconstitutionally kidnapped to Bagram (instead of GITMO and black sites), Karzai is thinking that the Afghans there need to be either charged or released.

        He also said he wants the U.S.-run prison at Bagram Air Base, where about 600 Afghans are held, re-evaluated and inmates released unless there is evidence linking them to terrorist affiliation. He said arrests are turning ordinary Afghans against U.S. and NATO forces.

        It’s a bit unclear what rules Karzai wants to change, bc US troops operate under Afghan rules that are “are kept secret for operational security reasons”

        Meanwhile, the media remembers to ask him about Dostum (and Farim for that matter. He doesn’t so much say Dostum wasn’t involved as to say those

        warlords had received “million and millions of dollars” from the United States for their help in fighting the Taliban in the 2001 U.S.-led invasion.

        So the defense is that we paid them for what they did. In the end, that’s everyone’s defense, isn’t it? From the telecoms to the torturers to the war criminals to the Afghan warlords. We paid them for what they did.

    • WilliamOckham says:

      Actually, there are oncogenic viruses (or virii, if you prefer). That is, viruses that cause cancer. This seems a pretty apt metaphor for what’s happened because these viruses work by altering part of their host’s genome. The genome of our body politic is the Constitution of the United States, as interpreted by the courts. Cheney and crew attempted (more or less successfully) to substitute their tyrannical version of our politic genome.

      • readerOfTeaLeaves says:

        Wow, I logged on to comment that at a glance, this article (and Yoo’s legal rationales) seem to have logic similar to credit derivative swaps: they’re abstracted from reality be several degrees of separation.

        But I think Wm Ockham’s analogy is more apt.
        I’ve thought of the BushCheney administration as a kind of ‘political retrovirus’ for a number of years now, and watching Addington (and Yoo) testify before the Congress last year, plus watching Cheney’s glare in his post-election interviews, has only confirmed my sense that these people are so ideological that they expect the entire world to reshape itself in order to conform to their expectations.

        They’ve done quite a good job of it, and none of it could have happened without: (1) extreme concentration of wealth since early 1980s, (2) increased social instability, (3) the right-wing Noise Machine to keep hammering their altered genome’s view of the role and function of government.

        And the whole notion of Cheney NOT telling the uniformed military about plans to send some kind of Special Ops (or ‘Blackwater’) unit into Lackawanna is precisely the kind of thing you’d see in the behavior of an oncogenic virus, as I understand them. Ditto OLC, and ditto the Cambone-Feith Office of Special Plans.

        The tumor starts taking the nutrients from the existing structures to use for its own purposes. That’s precisely what we’ve seen in US government, but the first symptoms (as near as I can tell) reach back to Iran-Contra. It then seems to have flourished once the SCOTUS handed Bush-Cheney the resources of government in 2000.

      • Mary says:

        I can see the attraction of that metaphor as well.

        I’d argue for much “more” than less in the more or less. When you are involved with and tied to implementing kidnap, sexual abuse, torture murder, torture, severe psychological trauma, etc. all for the benefit of being able to bomb babies in their beds in Iraq and Afghanistan, the the “consequences” is that the nation institutes multiple amnesty without allocution programs, coupled with a secretive detention “policy” and legislation to cover up and destroy photographic evidence of your policies, then topped off with a program to disappear some of the bigger problems into Saudi “rehab” – and everyone who touched on any of this (except maybe Gonzales – who is still doing pretty well from his USAtty hand offs) gets prestigous appointments at institutions that teach the law and/or big firm seats to warm; it’s MUCH MORE the more than the less.

        I think it’s how a snowball grows.

        • WilliamOckham says:

          I agree with you. And the few things that they weren’t obviously successful with are only “in remission”. Cheney didn’t get his military invasion of Lackawanna, but he got Jose Padilla. Because we never effectively repudiated that policy, all the horrors you describe can happen to any of us at any time.

    • rapt says:

      And NMvoice, and Dr. Ockham.

      So we have something of a consensus here that the Constitution has been trashed permanently? I agree that evidence indicates this to be true, but I can’t yet get my head around how it could occur without, you know, some kind of recognised usurpation of the govt. If I catch your drift, at some point there was a chance that the usurpers could be defeated, imprisoned, whatever, and the good guys would resume power and all would be good.

      But now all is lost – to be honest I have been waiting for some acknowledgement that this is so, but now that it has been I have a harder time dealing with the admitted fiction we are obeying and paying taxes to support.

      Mary said, “(one of the few institutions that beheads more regularly and in greater number than al-Qaeda)”

      Another (serious) question I have is What is al-Qaeda? I had most recently taken that group to be made-up, even originated, by PTB, or CIA, or whichever power base needed a new enemy upon which to continue warring. Something to keep the populace afraid.

      Now because al-Qaeda continues to pop up as a responsible party for things like beheading ^^ , among even those whom I respect for having a much better info base than I do, I must ask, Is it really a boogieman operation or what? So far I haven’t seen any credible evidence that it is other than a convenient moniker to hang on that generic enemy we always need to have around causing terror. I mean anything bad can be and has been blamed on al-Qaeda.

      Any clarification I’d love to see.

      • WilliamOckham says:

        I agree that evidence indicates this to be true, but I can’t yet get my head around how it could occur without, you know, some kind of recognised usurpation of the govt.

        The recognised usurpation came when they transferred Jose Padilla to military custody and nobody in power did a damned thing. No resignations from the DOJ. No action in Congress. Almost no outcry in the press. Nothing but a public defender and a few NGO’s. When the feds can pick up an American citizen on American soil and turn him over to to military custody to be tortured, we live in a tyranny. It’s really that simple.

        • rapt says:

          OK, now that you have defined (for this discussion) “recognised” to be qualified with *by anyone paying attention who has half a brain*, then Padilla is much too recent to qualify. Tacit recognition of this usurpation could be said to have happened decades ago, but I’d settle for January ‘01 when the Supremes gave Junya the presidency.

          Of course I was talking about official recognition, documented in some way. Lacking that, we can go ahead and declare that U.S.A. no longer exists. One might have hoped not so long ago, that we simply had a few bad apples to weed out, but the corruption has now become implanted and irreversible.

          Straining for a positive note, it seems likely that at some point fairly soon, this rot will self-destruct. Surely the rot itself doesn’t agree that it has a short life though.

      • fatster says:

        Not that this will help, but maybe.

        Taliban issues code of conduct

        UPDATED ON:
        MONDAY, JULY 27, 2009
        17:34 MECCA TIME, 14:34 GMT

        “The Taliban in Afghanistan has issued a book laying down a code of conduct for its fighters. 

        “Al Jazeera has obtained a copy of the book, which further indicates that Mullah Omar, the movement’s leader, wants to centralise its operations.

        “The book, with 13 chapters and 67 articles, lays out what one of the most secretive organisations in the world today, can and cannot do.

        “It talks of limiting suicide attacks, avoiding civilian casualties and winning the battle for the hearts and minds of the local civilian population.”


          • fatster says:

            Oh, shoot! I got so interested in the book discussed in the article, since it seems to indicate an attempt to concentrate power in that part of the world, that I misread your question. If you google “taliban al-qaeda difference” you’ll find articles that do distinguish the two.

  10. Leen says:

    Maybe they should just make the list of who is “above the law” Easy to see

    Interesting and Ot Most truthful words that I have read today

    Spitzer: Federal Reserve is ‘a Ponzi scheme, an inside job’…..nside-job/

    • bmaz says:

      Mikey Hayden, whose motto must be “Let no Unconstitutional intrusion go unsupported”.

      The program was lawful, effective and necessary.

      Or so sayeth the man behind the curtain running the program.

      Let’s be clear: when the National Security Agency reported intercepted communications from this program, the reports were often disseminated in the normal intelligence production stream. An analyst would have no way of knowing the source of the information.

      Uh, yeah, that is a notable chunk of the problem moron.

      There has been much controversy about the lawfulness of the program. Here I must point out that agency lawyers — career attorneys with deep expertise in the law, privacy and intelligence — assisted their professional Justice Department counterparts in their review of the program but remained comfortable throughout with the lawfulness of all aspects of the surveillance effort.

      Nice. Spooks and fucking John Yoo approved. Just like UL and Good Housekeeping seals of approval!!

      In fact, at every briefing we reported daily and cumulative activities for the program.

      Huh. That’s a new one.

      • lysias says:

        I wonder if the reason those NSA lawyers were “comfortable” was that they were relying on OLC opinions (even if they were only allowed to see those opinions’ conclusions, not the reasoning they used to arrive at those conclusions).

        • Mary says:


          Opinions on warrantless surveillance were kept from the NSA, which was charged with carrying them out, and for years even from the Deputy Attorney General.

          Then there’s the hospital confrontation followed by the program going forward in direct contravention of the advice of the DAG and of the AG (and let’s face it, OLC opinion or not, OLC only has delegated power from the AG – if the AG overrules them, his call is THE call) – so after DOJ tells you there’s no legal basis – but somehow the IGs find no intentional violations.

          Yeah, right.

      • WilliamOckham says:

        In fact, at every briefing we reported daily and cumulative activities for the program.

        That sentence doesn’t even make sense. They reported “daily activities” to Congress? In what universe could that be meaningful?

      • Mary says:

        Here I must point out that agency lawyers — career attorneys with deep expertise in the law, privacy and intelligence — assisted their professional Justice Department counterparts in their review of the program but remained comfortable throughout with the lawfulness

        Even worse, that’s just bull. NSA lawyers were never given the OLC opinions and were presented with the “lawfulness” as a fait accompli, and to here Tamm tell it, there was frequent reference to everyone going to jail and to hear Comey tell it, Hayden himself confessed he wanted someone to sit next to him when his unlawful activities were exposed.

        More to the point is what I keep raising, and the IGs and Mikey and Congress never seem to pay any attention to –

        the branch that is charged with determining lawfulness, not OLC lawyers but the judicial branch of government, had three instances where the program was briefed to Judges – 1. Lamberth; 2 Kollar-Kotelly; and 3. Diggs-Taylor. In each of those instances, the Judicial response to “the program” was to say it was unconstitutional.

        Add that factor in for the IGs and a jury to juggle with, then tell me there were no “intentional” violations.

        • bmaz says:

          Exactly what I keep harping on with the “bad faith” instances. It is really fairly easy to make a case out for bad faith action/intentionally malfeasance. All you have to have is the will to do so.

          • Mary says:

            Yep – and in addition to all those lost emails that the IGs can’t have reviewed yet, you have the course of conduct evidence as well. As soon as Will Taft disagreed with them, he and State were cut out of the loop on Geneva Conventions and torture.

            As soon as Mora disagreed with them (and went to JAG and other Pentagon lawyers) they set up a blind alley working group and then signed out the memos without letting them know.

            When Comey disagreed, they went on with the program anyway in contravention of advice from Acting AG and even hospitalized, non-acting but appointed AG.

            When the torture videos got mentioned much, they were destroyed.

            When the program began to be revealed, it was designated as an “al-Qaeda calling” program publically, by the President, who was certifying that only calls of known al-Qaeda terrorists were being warrantlessly wiretapped.

            When Hayden was questioned about the program, he had kittens over the fact that it was not a data mining program (at least, not if you get to redefine data mining in accord with his peculiarities I guess – like torture isn’t torture when you’re the inflctor instead of the inflictee).

            When Gonzales went to Congress to testify, he kept limiting his response to the “al-Qaeda calling” program “that the President revealed”

            Before Gonzales went to Congress to testify, he admitted on national tv that they didn’t go to Congress for legislation bc they knew Congress wouldn’t give it (shows how much he knows, doesn’t it – he really misunderestimated what the Dems would be willing to do to keep Bush out of jail)

            They deliberately failed to brief the full intel committees about this intelligence gathering (not covert) operation and its domestic impacts in violation of the Nat Sec Act

            Reports have been made of passing around intercepts of miiltary officers’ private calls with family and phone sex

            In the out of control Exec branch, even presidential candidates information was being routinely accessed and disseminated by low level schmucks and without safeguards
            you know, guys and chicks with Secret Service protection and yet their info was passed around like Two Buck Chuck

            etc etc etc

            But yeah, I think we can all infer that there was no “intentional” violation of law – just like freezing someone to death at the Salt Pit wasn’t torture – it was just an enhanced interrogation technique. Actually, I guess Yoo with his medium-like capabilities came in handy for those instances.

        • klynn says:

          More to the point is what I keep raising, and the IGs and Mikey and Congress never seem to pay any attention to –

          the branch that is charged with determining lawfulness, not OLC lawyers but the judicial branch of government, had three instances where the program was briefed to Judges – 1. Lamberth; 2 Kollar-Kotelly; and 3. Diggs-Taylor. In each of those instances, the Judicial response to “the program” was to say it was unconstitutional.

          Add that factor in for the IGs and a jury to juggle with, then tell me there were no “intentional” violations.

          (my bold)

          Mary you have a way with words and the rule of law for which I am thankful.

    • Hugh says:

      I don’t think the Hayden piece is off topic at all. If it is neocon, both the WaPo and the NYT stumble all over themselves to promote it. I would put the WaPo a little ahead of the Times in regurgitating whatever the Village Conventional Wisdom is. In future years, historians will be reading the blogs of our times to figure out what was going on. The WaPo and Times on the other hand will be studied in English departments and scholars will be writing about what a period of badly written fiction we lived in.

  11. lysias says:

    Meanwhile, WaPo today has an editorial suggesting that operators who went beyond the OLC opinions should be held accountable — with no suggestion that government lawyers who deliberately misinterpreted the law (or their political superiors) should also be held accountable.

    I wonder why the WaPo article on Yoo contains a suggestion that Yoo might turn on those political superiors:

    It [the turn to having private lawyers defend Yoo] also liberates Yoo to assert that he was acting at the behest of Cheney, President George W. Bush, adviser David Addington and then-White House counsel Alberto R. Gonzales, an argument legal sources said he may make if the case progresses.

    By the way, what would be the point of raising orders from Cheney, Addington, and Gonzales as a legal defense? They were not in Yoo’s chain of command, were they?

  12. fatster says:

    Since they can’t solve it, they’ll just close it. There is no leadership in this country any more to counteract the continuing sweeping under the rug of things that mustn’t be revealed. Our Constitution will soon be under there, too.

    US on verge of closing anthrax probe after 8 years
    By DEVLIN BARRETT (AP) – 1 day ago

    WASHINGTON —” A year after government scientist Bruce Ivins killed himself while under investigation for the lethal anthrax letters of 2001, the Justice Department is on the verge of closing the long, costly and vexing case.

    “Several law enforcement officials told The Associated Press that the department had tentatively planned last week to close the case, but backed away from that decision after government lawyers said they needed more time to review the evidence and determine what further information can be made public without compromising grand jury secrecy or privacy laws.

    “Officials told the AP the decision to close the case has been put off for what may be weeks, as the FBI and Justice Department continue to wrestle with an investigation that has led many to question the quality of their work and the certainty of their conclusions.”


    • Hugh says:

      US on verge of closing anthrax probe after 8 years

      Well, that is disappointing news. After 2 investigation fuck ups, I was sure they had a third in them.

        • Hugh says:

          There is a third…

          They are on the verge of closing the probe.

          Naw, for it to be a real investigation, they would have to convict some schmo in the court of public opinion and then sit back and watch the blogosphere demolish their case.

          • fatster says:

            They tried that. He died and they cremated him and said he most likely did it. End of story. And then some bloggers, in particular one over at a place called FDL kept combing through the details. So, last I heard, they had asked for a review of what had been done–and it’ll take a year for that to happen, at which time we will all have presumably forgotten about it anyway. Yeah, right.

  13. Mauimom says:

    The Post article is beyond disingenuous with the way it blithely equates the pros and cons of Yoo and his work.

    The Washington Post can’t disappear from the face of the earth fast enough for me.

  14. fatster says:

    And here’s what the GWOT is doing to our troops in Sandland.

    52 percent of U.S. soldiers wounded in Iraq, Afghanistan diagnosed with TBI
    July 28, 2009

    WASHINGTON — “Some 52 percent of soldiers severely injured in Iraq and Afghanistan who have come to the U.S. Army’s largest hospital for treatment have been diagnosed with traumatic brain injuries (TBI), an internal study has found.

    “The results of the study, carried out by Defense and Veterans Brain Injury Center (DVBIC) at Walter Reed Army Medical Center, also showed a steep increase — from 33 percent — in TBI cases since the end of 2008.

    “Diagnoses of TBI are rising steadily as arrangements for TBI checks improve, while at the same time improvised explosive device (IED) attacks — the primary cause of TBI — in Afghanistan are intensifying, with 46 U.S. soldiers killed by the homemade bombs so far this year. Casualties from these attacks flow into Walter Reed, which provides treatment to badly wounded soldiers unavailable anywhere else.”


  15. prostratedragon says:

    I’ve long suspected that They Who Have Lost Their Names thought they had some kind of grand unified license to go for absolutely everything one last time, theirs being essentially a maximum ruin policy.

    Maybe this was it.

      • prostratedragon says:


        If it’ll steady them any (your nerves), keep in mind that it’s as much about what they thought or think as about what’s actually true. I.e., maybe total disaster isn’t inevitable, but maybe there are opportunities that they want to monopolize.

        (Alas, there are always opportunities.)

        Still, the whole thing’s a hardening thought.

  16. Loo Hoo. says:

    Another example: Grandpa and Grandma are going to court, but Haliburton and Blackwater?

    For the Spiers, the Berger windfall engineered a life-changing turnaround. And they might have lived happily ever after, too, except for one thing: They were defrauding the government, according to the Justice Department, filing phony receipts and billing for ghost employees to bilk millions of dollars from programs aimed at rebuilding the country’s war-ravaged infrastructure. (The case will go to trial in September.) Their alleged exploits, many of which have not previously been reported, offer one of the most vivid pictures yet to emerge from Afghanistan’s Wild West contracting bonanza.

    • fatster says:

      We’re being ripped-off right and left. And Congresscritters? We’ve been ripped off there, too, since they are now owned by the corpos and other special interests. As has been said on these pages before, the courts are turning out to be our last hope. But they can only deal with the cases that are brought before them. And just try and count all the cases that will never reach them, or so it seems. Remember Bremer and the $9billion that disappeared in Iraq? Do you think we’ll ever know what happened with that? And what about all the bucks disappearing into the deep dark secret chasms such as Goldman-Sachs? Halliburton? Off-shore banking? And on and on.

      We are screwn. (I refer you to skdadl who can tell you the correct wording.)

  17. DieselDave09 says:

    The president and the executive branch as well as Republicans in congress as all above the law. The Yoo school of public policy has been codified. Anytime a president wants to do something, all he has to do is get signoff from the OLC and presto!, the law is changed and reinterpreted to reflect the president’s views. Want to kill hispanics on sight? If the OLC says it’s legal, go ahead. It really is too late to save this nation. In 5 years we’ll all be eating dog food from China. All except the richest 1%. They will be the ones selling it to us for enormous profit.

  18. fatster says:

    And here’s another hope of ours that appears to be dying on the vine.

    Legal experts raise questions about Rove testimony deal
    Published: July 27, 2009 
Updated 42 minutes ago

    “A deal brokered by the Obama White House to obtain Karl Rove’s testimony before the House Judiciary Committee contains a number of unusual provisions, prominent legal scholars say.

    “The secrecy is in line with the agreement (pdf) worked out last March to secure testimony from Rove and from former White House Counsel Harriet Miers, which guaranteed that no information would be released until the completion of all interviews. However, under the terms of that agreement it appears likely that certain crucial facts, especially about the US Attorney firings, may never come out.

    “Legal experts consulted for this article are also concerned about the role played by current White House Council Greg Craig, who negotiated the arrangement made by Miers and Rove with the House Judiciary Committee.”


    • Mary says:

      McConnell always gets what he wants. Grayson will be a much stronger R candidate (blergh) I’ll have to hope for Conway to get the D nod or, if we have Mongiardo, I guess I’ll end up voting libertarian.

        • Mary says:

          I could do that. If the Dems offer up Mongiardo instead of Conway, though, I won’t be too happy and Paul has no shot against Grayson.

        • dakine01 says:

          I wouldn’t get over confident if I were Conway, but looking at the difference in quarterly fundraising between Conway and Mongiardo, ol’ Dan just might want to make sure his medical license is up to date (since it appears Beshear has already picked a new running mate in Abramson).

      • bmaz says:

        Why not? Couldn’t do any worse than the current guy they got. Guy that had never managed a game in his life they fired Bob Melvin, a real decent guy and manager, to get. Bleeech.

  19. earlofhuntingdon says:

    Intellectual honesty and the Washington Post parted company about thirty years ago.

    Mr. Yoo may have put his signature on those opinions, and written others for others’ signatures, but the power pulling his string was almost certainly David Addington. Had Yoo not accepted and expressed Addington’s views – had he been a mensch or an independent legal mind that used instead of abused his constitutional scholarship – he would have been back teaching at Berkeley before Halloween 2001.

    • Mary says:

      Here’s something I think is interesting. The “forward leaning” Pisa lawyers are generally mentioned as including Gonzales, Flanigan, Addington and Yoo (with Bybee signing off on whatever Yoo puts under his nose). In August, 2002 there is a memo done by a top CIA analyst that explains how wrong they have been about some things like who they have at GITMO. It uses names and relates that at least a 1/3 of the people at GITMO, being held under Yoo authorized depravity, are completely innocent of being any kind of combatant or terrorist.

      Bellinger sees it (which means Rice knew all about it – something her students should ask her about – and for that matter, Obama should have released it long ago) and asks for a meetup with Gonzales over it.

      Gonzales ends up having back up for the meeting – he gets the other leaning lawyers, Adddington and Flanigan. But why not Yoo? IMO, they were deliberately making sure that there were no third party witnesses to Yoo being briefed on the innocence of people he was authorizing for torture. I think he probably still knew – Flanigan and Addington probably were sharing kinda guys as long as putting something in writing was not involved – but keeping Gonzales only summoning two of the three stooges to the meeting, and keeping out the guy whose memos were authorizing all the depravity, seemed very telling and calculated to me.

      • WilliamOckham says:

        And think about the timing of that in connection to the plan to have the military grab the “Lackawanna Six”. CIA analyst says we got a lot of innocent people at GTMO. Then Cheney hears that there might not be enough evidence to convict those sad sacks from New York. His response is to have the military grab them.

        • Mary says:

          And in June of 2002, Cheney pulled that off with Padilla – and the SD NY joining in for complicity’s sake. Then in Sept of 2002, right after getting back from the torture field trip, Larry “I’d like to buy the world a Pepsi” Thompson signs off on sending Maher Arar off for torture.

          It good that we’ve made all this progress with the Dems in office though – now we just have Obama gearing up to send dozens from GITMO en masse to Saudi Arabia for “rehabilitiation” without trial or anything to charge them with and without their having any ties to Saudi Arabia of any kind.

          Not enough showers in the world.

        • earlofhuntingdon says:

          Yes, nicely caught possible sequence. The “No Law Binds Me” mentality of Big Dick would fill any gap in the law he couldn’t ignore or twist to his selfish use. Keeping “us” safe my ass.

      • maryo2 says:

        Didn’t Yoo testify that he was not aware of any applications of his policy advice? He could say such a thing if he was left out of certain conversatons by design.

        • Mary says:

          I didn’t see that testimony, but wouldn’t be surprised. Of course, once he saw the Abu Ghraib pics, which required all the effort of turning on his tv, he became aware of what the applications of his advice looked like in real life. And then sat mum through the “few bad apples” show trials, despite having personal knowledge of the excuplatory information of DoD having a whole regime of treatment like that shown in the photos authorized out of his office, by him (and Bybee).

          That is the kind of thing that someone needs to try to nail him on, imo, more so than how bad his opinions were. As many conversations as he did deliberately avoid, he knew all about the torture regime and the slew of cases that impacted them and DOJ’s responsiblities of candor to the courts, the participants in the legal proceedings, and Congress. And he flouted those obligations.

  20. earlofhuntingdon says:

    Ms. Johnston is just doing her job – rehabilitating the battle-scarred knights of the Republican Party. This isn’t reporting, it’s a dinner theater script.

    Usurpation of power is a perennial hunger for some, and those who have it find those willing to fall on their swords useful. If Mr. Yoo can no longer be disciplined by his bar, if Berkeley avoids culling an insult to academic integrity and legal scholarship, expect Mr. Yoo’s name to reappear on the list of federal appellate court judgeships in the next Republican administration. Probably for the “liberal” 9th Circuit, just to twist the knife.

  21. earlofhuntingdon says:

    It is strange that such a meeting should have taken place without an OLC lawyer present. It discusses facts directly relevant to the applicability of Yoo’s opinions, even assuming one knows about them and concludes that they are sound enough to rely on in the first place.

    The only real back-up needed at such a meeting held then was David Addington. As the ear and spear of the vice president, he was acting for the de facto president and these insiders knew it. Cheney was the man behind the curtain; he got whatever he wanted, in part, because the president still signed off on whatever he asked for (even when he didn’t know what that was).

    I think you’re right. Keeping an OLC lawyer away from such a meeting was critical to the political task of slamming Bellinger’s perspective – and Bellinger himself – as a politically and factually incorrect reading of the “facts”.

  22. Hmmm says:

    OT — House Dem Putting GOPers On The Spot By Introducing Measure Describing Hawaii As Obama’s Birthplace

    The measure Abercrombie will introduce commemorates the 50th anniversary of Hawaii’s statehood. But here’s the rub, his spokesman tells me: It describes Hawaii as Barack Obama’s birthplace.

    “In the language of the resolution, there is a statement that Hawaii is the birthplace of the 44th President of the United States,” Abercrombie spokesman Dave Helfert confirms.

    That confronts House GOPers with a choice: They can vote for the measure, and endorse the idea that Obama was born in Hawaii, which could earn the wrath of birthers. Or they can vote against commemorating the 50th state’s joining of our blessed Union. Or GOPers can skip the vote, but that could look nutty.

    “Far be it from us to try to stir things up,” Helfert said puckishly. “The president was born there, so what are you gonna do? Not mention it?”

    Hilarious. Hope it doesn’t backfire.

    • bmaz says:

      Yeah, I listened to it earlier. About what I expected. The two things that stuck out to me are Crowley acknowledged relatively early on that he was aware it was Gates in his house, there is no huge commotion detectable through the microphone and on the tape, Crowley appears to call for “the wagon” before he has made an arrest and, lastly, there is no evidence on the tape supporting Crowley’s motivation as racial as opposed to simple abuse of power as a cop. And, of course, it was an illegal arrest.

        • bmaz says:

          Yeah, I am pretty close to accepting that Crowley’s actions were not particularly racially motivated, he is just an asshole cop who abused his power and made an illegal arrest. I am here to tell you, this junk happens to white people all the time too, it is not just a racial problem. Problem is, Obama, Gates and the chattering class press will not want to pursue that lesson, which would be a valuable discussion for everybody.

          • klynn says:

            And Crowley went on national radio and tv demanding the President apologize?

            That just magnifies his abuse of power complex.

            I think the “cop-it-is-my-law” needs to make some VERY public apologies.

            • Hmmm says:

              Maybe more likely, PBO will continue to play a central role in allowing Crowley to save some face, but is now more free to primarily honor Gates’ experience rather than Crowley’s. Everyone still has to rise above.

  23. PPDCUS says:

    John Yoo is a cancer on the Constitution.

    Too bad constitutional health care reform isn’t on the administration’s radar.

    • bmaz says:

      Yeah, that is standard practice in such situations, there is nothing shocking that the government covers the tab, especially since Estrada agreed to work at the designated rate of $200/hr.

      • fatster says:

        Thnx, bmaz. I do understand that. I’m just disgruntled that we keep spending money on these people who have done so much damage to us, our Constitution, other human beings, etc. On the other hand, I wouldn’t be grumbling if a few of my tax dollars went to pay for housing and board for Yoo at a federal facility.

  24. worldwidehappiness says:

    rapt wrote:

    …at some point there was a chance that the usurpers could be defeated, imprisoned, whatever, and the good guys would resume power and all would be good.

    I can tell you the precise moment that happened. It was when Obama upheld Bush’s “national security” narrative when voting for the FISA changes last year. Obama had the chance to change the narrative to:

    “We won’t change America out of fear of a few scruffy terrorists”.

    Instead of returning to the old strong moral Constitution-based America, he went with the new Bush/Cheney fear-based America.