Missing the Deployed Military for the Trees

In his post on the story that Cheney wanted to use the military to capture the Lackawanna Six, Scott Horton claims that the October 23, 2001 memo was written (seemingly exclusively) for the kinds of actions Cheney envisioned.

So the Yoo memoranda were almost certainly prepared in order to support a case for the domestic use of the military and in the hopes that by deploying the military, the Constitutional limitations on police action and arrests could simply be avoided.

He also confuses the memos in question, claiming a relatively (!) innocuous memo written for David Kris is the "principal memo" and forgetting that what is really the principal memo in question–the October 23, 2001 one–already has been released (though also read this Jason Leopold comment on a September 21, 2001 memo that is crucial as well).

The disclosures shed considerable light on two memoranda prepared in the Justice Department’s Office of Legal Counsel by John Yoo (with the help of Robert J. Delahunty on the second memo) at the request of then-White House counsel Alberto Gonzales. The principal memo was part of a group published by the Obama Administration on May 16, provoking widespread public concern. In the memo, Yoo argued that the Fourth Amendment could be viewed as suspended in the event of domestic operations by the military in war time. The second memo, not yet released but discussed here by Prof. Kim Scheppele on the basis of references to it in other documents, apparently attempted to read the Posse Comitatus Act of 1878, which forbids the domestic deployment of the military for police functions, into oblivion.

This confusion–and the claims that the October 23 memo primarily envisions the arrest of alleged terrorists by the military–is troublesome, IMO, because it obscures the other known application of the October 23 memo: the authorization of domestic surveillance by the military.

We know the Bush Admininistration had already used the memo in question–at least hypothetically–by the time Cheney floated using the military to detain the Lackawanna Six because Steven Bradbury listed the memo as one of those underlying the domestic surveillance program. Granted, the recent IG Report says any earlier memo–including, probably, the one Leopold notes–is hypothetical (though definitely related). But as late as April 2008, Michael Mukasey was parsing wildly about whether the memo was still in effect–and it had not yet been withdrawn. It was not ultimately withdrawn until after FISA Amendments Act passed and Patrick Leahy kept nagging about it.

I’m insisting, perhaps pedantically, on maintaining this distinction for two reasons. First, because at least according to Steven Bradbury, the military already was deployed domestically against Americans. That’s what the domestic surveillance program was (and largely still is): the use of DOD’s NSA-related capabilities to detain and search American property–their email–and to hell with the collateral damage.

Also, it’s important to retain this distinction to avoid falling into Cheney revisionism that appears rife right now. I said in comments to my post on this that this Lackawanna story may partly serve the past administration by distracting away from the known uses of the October 23, 2001 memo. If everyone focuses on the hypothetical, but never realized, use of the memo with the Lackawanna Six, they forget that the memo was used, at least partly, to justify seizing and searching the emails of millions of Americans. 

Horton acknowledges but does not question the problem with his reference to the Bush myth on the Libby pardon.

The latest disclosures occur during a mounting feud between Bush and Cheney that was launched with Time magazine’s disclosure that Bush rebuffed Cheney’s aggressive play to secure a full pardon for his close friend and former chief of staff, Scooter Libby. Cheney responded to the Time article with a barely civil statement to the effect that Libby had been entitled to the pardon. The new disclosure seems again designed to show Cheney as an extremist whose advice was not always followed by Bush.

"Seems … designed to show…" ought to be the tip off to look further, to question the facade.  And behind the facade of hypothetical but unrealized deployment of the military against Americans lies the reality of deployment of military capabilities to violate the Fourth Amendment of Americans across the country.

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  1. perris says:

    and the gorilla in the room, we must recognize that this demonstrates even more, yoo would write any memo the aministration requested regardless how illegal that request might be

    this really must be a focus, we must do whatever is neccessary to get yoo disbarred for these memos

    btw

    the goodbye was bitter sweet marcy, lots of emotion, tears and joy.

    very few still in the plant since most of the cars are finnished, I got to see the last solstice being made, brought most of us to tears

    I asked each person still in the plant “what did you do to my car?”

    we then shared their job and anectdotes…for instance;

    [to first person greeting us on the line, a female]

    [me]”what did you do to my car?”

    [her]”I PAINTED HER!!!”

    [me]”will you sign this work of art for me?”

    [her]…(seemed there was both a smile on her face and a tear in her eye)”of COURSE I will”

    [me] “THANK YOU FOR MAKING MY CAR”

    anyway, back to my point

    yoo must be disbarred

    • Rayne says:

      You said, “yoo would write any memo the aministration requested regardless how illegal that request might be.”

      I think they already knew what kind of memos he’d write before they even approached him; his work product going back to 1996 was consistent with the work he was asked to do for the Bush/Cheney administration.

      Could just be a chicken-egg question, but I think Team Bush/Cheney knew exactly what kind of chicken would come from this egg; it was born of similar chickens, reared in their nest.

  2. Peterr says:

    Bush and his allies love the Time piece, because it makes them look moderate and wise. Of course, when Cheney is the standard by which you are measuring . . .

    Thanks for not letting the story of the contemplated-but-not-acted-upon application of this memo obscure the ACTUAL actions taken — DOD domestic email surveillance — by BushCo.

    Somehow, Bush’s plea “I only shredded the constitution this finely; I didn’t break it down into its original wood pulp” is not exactly a stirring defense of our constitutional form of government.

  3. klynn says:

    “Seems … designed to show…” ought to be the tip off to look further, to question the facade. And behind the facade of hypothetical but unrealized deployment of the military against Americans lies the reality of deployment of military capabilities to violate the Fourth Amendment of Americans across the country.

    (my emphasis)

    EW moves from “what if” thinking to “thinking”.

    And, my goodness, that list of military capabilities to violate the Fourth Amendment of Americans is a pretty long list.

    Just ask some Quakers. But you knew that unfortunate fact.

  4. Rayne says:

    Looks like Horton left the rest of the inquiry to the subject matter expert.

    He does make a solid point, and perhaps this is what his contribution to this process should be: Yoo’s claims are dishonest.

    Period.

    IANAL, but from my perspective it looks like Horton’s focusing more on Yoo’s lawyering which enabled the Bush/Cheney good-cop-bad-cop routine, not on the routine itself or the aims of the routine. At some point there must be a body of work which refutes and rejects Yoo’s work as absolutely beyond the pale so that it cannot underpin Bush/Cheney or any other administration’s attempt to undermine the Constitution.

    Were a copy of the Sep. 21, 2001 memorandum by Yoo to be declassified and released, it would certainly give Horton more reason to smack down Yoo and perhaps widen Horton’s understanding of the intentions behind the accrued, aggregate memos.

  5. mafr says:

    ” yoo would write any memo the aministration requested regardless how illegal that request might be”

    Having an opinion from a lawyer, does not make conduct “legal”, or “Illegal”. That’s why it’s called an Opinion. If it’s wrong, the lawyer is responsible to the client, but the client is still responsible for the conduct.

    at least for mortals.

    • Rayne says:

      Thanks for that, very helpful.

      But I note the Oct. 23, 2001 memorandum uses some wordsmithing which avoids the word “opinion.”

      First two grafs, for example:

      You have asked for our Office’s views on the authority for the use of military force to prevent or deter terrorist activity inside the United States. Specifically, you have asked whether the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), limits the ability of the President to engage the military domestically, and what constitutional standards apply to its use. We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations.

      Our analysis falls into five parts. First, we review the President’s constitutional powers to respond to terrorist threats in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon. We consider the constitutional text, structure and history, and interpretation by the executive branch, the courts and Congress. These authorities demonstrate that the President has ample authority to deploy military force against terrorist threats within the United States.

      Searching the entire memo one will find the word “opinion” used only with regard to other’s opinions or decisions, and not in reference to the work in this particular memo. Certainly seems as if Yoo/Delahunty were conscious of this point — which makes the as-yet-unseen Sep. 21, 2001 memo more important, as it may be an opinion.

      • Mary says:

        Legally, to the extent a conclusion is expressed, you have an opinion. So the Oct memo is an OLC opinion.

      • mafr says:

        That is understandable, what else do they have to go by. But, don’t the opinions have to be given in good faith, and not simply to meet the wishes of the client.

        but I can’t believe that these opinions can render any act lawful, (or unlawful). At least I wouldn’t think so, if they did, then there would in fact be no law, other than what their lawyers decided was the law.

        Can’t have that can we?

        • lysias says:

          No, OLC opinions certainly do not render unlawful actions lawful, or lawful actions unlawful. Courts (the ultimate deciders of such matters) are quite free to disagree with them. But executive agencies are not allowed to.

  6. perris says:

    I think they already knew what kind of memos he’d write before they even approached him; his work product going back to 1996 was consistent with the work he was asked to do for the Bush/Cheney administration.

    yup

    here’s what they did;

    [administration] “we need a memo that will help cover our ass, we want to commit untold crimes, can you write a memo telling us “that’s fine”?

    [yoo] “it is fine and I’ll write that memo telling you so”

    ]administration] “we knew you’d come through, [email protected]

  7. perris says:

    I have to say, the webmasters need to take a look at the add servers loading on this site, they are killing it, I have a t3 line here and the site takes forever to load

    if I weren’t a regular and addicted to this site I would never visit

    • BoxTurtle says:

      You may have a local problem. I hit FDL in general and EW in particular several times a day and I’ve never had a problem loading.

      However, that may be because I’ve got most of the ad servers blocked. You might try adding these to your hosts file:

      127.0.0.1 ad.yieldmanager.com
      127.0.0.1 serving-sys.com
      127.0.0.1 bs.serving-sys.com
      127.0.0.1 ads.pointroll.com
      127.0.0.1 adopt.euroclick.com
      127.0.0.1 tacoda.net
      127.0.0.1 zedo.com
      127.0.0.1 videoegg.adbureau.net
      127.0.0.1 ads.adsonar.com
      ::1 localhost

      You’ll notice doubleclick ISN’T in that list. Too many sites depend on a response from doubleclick before they display desired content and entering it as above prevents that reply. You have to handle it differently, details upon request.

      Boxturtle (Hostile to advertising in ANY obtrusive form)

      • acquarius74 says:

        Box Turtle, I’m requesting. What ad blocker program do you use? Thanks. This problem is infuriating.

        • BoxTurtle says:

          I run IE8’s popup blocker along with Norton. Nothing special there.

          What I do that makes the difference is I load my hosts file as above when I identify evil ad servers at the sites I visit. Essentially what that does is route the listed site to the specified IP address 127.0.0.1. By Convention, that address means whatever computer is issuing the request I.E. YOU! Unless you’re running a webserver on your box, your browser will get a cannot connect error and move on without ever attempting to contact the real site.

          You have to be careful. Some adserver/site combinations require a response from the adserver before they display the content and this will block that and cause the site to hang. Doubleclick is famous for that, but they’re alos the most powerful adserver on the net with huge bandwidth so they’re rarely the issue. You just have to try and see.

          The location and method for editing the hosts file is different of different versions of windows. Google hosts and whatever OS you’re running and you’ll find specific directions for your version.

          Boxturtle (The preceeding has been a public service announcement)

          • acquarius74 says:

            Thanks so much, BoxTurtle. I’m no pro, but will study your instructions and proceed with caution. I don’t have Norton (got McAfee), and have been refusing IE8 — guess it’s time I accepted it.

            Thanks again, BT.

              • acquarius74 says:

                Noted, and thanks MrWhy. I’ll check my Firefox to see if I have NoScript. Generally I find Firefox better than IE. I’ll update both per your, BoxTurtle and Bob’s instructions. Thanks to all you good pups!

      • PJEvans says:

        I’ve added those hosts to the content-filter in my system. (It was under ‘banner ad blocking’.)

        Thanks!

    • acquarius74 says:

      perris, I’ve had the same problem. Refreshing doesn’t help. Screen locks up and I can’t even close out, stays locked up a long time. Same problem whether i’m using Firefox or IE.

      Can someone recommend a reliable ad blocker program?

      • bobschacht says:

        I often have a similar problem– not with an FDL window freezing up, but hanging on one of the ad servers, or at FDL itself. When that happens, Reply doesn’t work, and none of the formatting functions work, but I can submit a comment.

        As Rayne suggested, flushing your cache can help, but it’s only part of the solution. Rayne’s list:
        – Clear your browser(s) cache;
        – Run two different anti-spyware/anti-malware programs and ditch all tracking cookies;
        – Run your antivirus;
        – Delete all unnecessary temp files;
        – Check to see if you have only one and latest version of Java running (this seemed to be the biggest problem, every past version was still hanging around);
        – Run disk defrag until you are under 1% defragmentation.

        Bob in HI

        • acquarius74 says:

          Thanks, Bob. Copying all this good advice and after study will proceed with caution. [oldandslow got nothing on me, hee,hee]

  8. alabama says:

    I can’t believe that this nonsense waited for 9/11 to get started. The paper-trail yes, but the planning (as with the hiring), surely not. Or not, at least, the wishing and hoping.

    Has Richard Clark already discussed this?

    When were Yoo and his fellows hired? Before the 20th of January? Were they quizzed about the Constitution during their intake interviews? Yoo himself must have published some pertinent papers in the law journals.

    Cheney and Rumsfeld must have offered some interesting remarks during their years of bitter exile….

    • Leen says:

      Where is Wolfowitz? How did he slip out of the picture? In Ron Susskind’s book “The Price of Loyalty” Former Secretary of the Treasury Paul O’ Neil stated that Cheney and Wolfowitz were the ones pushing for an invasion of Iraq far more than Rummy

      • alabama says:

        I doubt that Rumsfeld ever took the “war in Iraq” seriously, or that he thought it made any sense, and he surely felt that it encroached upon his only passion, the “updating” of the military machine, whatever that might have involved (beyond throwing contracts to deserving friends).

        No doubt he wanted to get Osama Bin Laden, quickly and with dispatch (rueing the missed chance of Tora Bora). But Iraq? The wholesale delegating of tasks to those idiots down the line: did he really think they could do the job? Did he even think that the job needed to be done? Perhaps he worried that a truly competent junior staff would insist on eating up his precious time.

        Rumsfeld must have held the neocons in total contempt. It’s as if he were saying, “Go off and fight your silly little war, and leave the real work to me”.

    • lysias says:

      The morning of 9/11, when the Justice Dept. building was evacuated, Yoo stayed behind in his OLC office.

      I wonder if that was the result of advance planning.

  9. Leen says:

    “Cheney responded to the Time article with a barely civil statement to the effect that Libby had been entitled to the pardon.”

    This sense of “entitlement” to operate above the law seems to be at epidemic levels in the Bush administration

  10. Mary says:

    I caught the very end of Suskind on Maddow’s show and they were talking about something that you alluded to – the anniversary of 9/11 and it’s effect on Cheney wanting to use the military for the Lackawanna guys. He stated it for a fact, that this was something that Cheney was focusing on and wanted the symbolic show of power (also mentioned that everyone in the neighborhood, including the guys, knew that the FBI had those guys under surveillance as they kind of stood out)

  11. Garrett says:

    The President’s Surveillance Program.

    At a pretty out there level of rank speculation, but: two programs, 1) physical surveillance, and 2) secret premises searches, both by the military, and without warrants, and against Americans with some level of connection to terrorism.

    These two programs being the ones objected to by Comey et al. And the objections overcome by “modification” by bringing them back under the FBI.

    If so, a big question: what details of it did they neglect to tell Congress?

    • whitewidow says:

      I always wondered about this line of questioning from Schumer. What did he know that caused him to ask this?

      Schumer: Now, here’s the next question I have: Has the government done this? Has the government searched someone’s home, an American citizen, or office, without a warrant since 9/11, let’s say?

      Gonzales: To my knowledge, that has not happened under the terrorist surveillance program, and I’m not going to go beyond that.

      Schumer: I don’t know what that — what does that mean, “under the terrorist surveillance program?” The terrorist surveillance program is about wiretaps. This is about searching someone’s home. It’s different. So it wouldn’t be done under the surveillance program. I’m asking you if it has been done, period.

      Gonzales: But now you’re asking me questions about operations or possible operations, and I’m not going to get into that, Senator.

      Schumer: I’m not asking you about any operation. I’m not asking you how many times. I’m not asking you where …

      Gonzales: You asked me, “Has that been done?”

      Schumer: Yes.

      Gonzales: Have we done something?

      Schumer: Yes.

      Gonzales: That is an operational question, in terms of how we’re using capabilities.

      Schumer: So you won’t answer whether it is allowed and you won’t answer whether it’s been done. I mean, isn’t part of your — in all due respect, as somebody who genuinely likes you, but isn’t this part of your job, to answer a question like this?

      Gonzales: Of course it is, Senator.

      Schumer: But you’re not answering it.

      Gonazales: Well, I’m not saying that I will not answer the question.

      Schumer: Oh.

      Gonzales: I’m just not prepared to give you an answer at this time.

      • Rayne says:

        Yes, there’s the veiled suggestion that Gonzales wasn’t willing to talk about a different program, or a different operation, or a different operation which was still nebulous, yes?

        Could have been parsing about the program(s) since a military-led surveillance program may not be the same as the NSA-led surveillance program.

        Could have been parsing to avoid discussing Cheney’s covert operation(s), planned or realized, within CIA or JSOC, to conduct renditions, detentions and ultimately assassinations.

        Could have simply been weasel words to try and avoid discussing an actual operation versus a planned one, in order to protect the plans or operations.

        That Yoo has employment and AG went unemployed for so long suggests that the powers that be among the right-wing were not happy with the manner in which AG handled this and other answers, and were happier with Yoo’s “work.”

        • behindthefall says:

          Heck, that’s not even “parsing”! That’s just a vaudvillean nonsense routine. Scriptwriters get good money for stuff like that (I hope).

      • behindthefall says:

        It almost makes you long for that vintage BS. What an exchange! It’s as good as “Who’s on first?”

    • Leen says:

      Just amazed at how he slipped out the back door of the accountability watch. Code Pink other groups target Rumsfeld but no Wolfowitz or Feith. what gives

      • BoxTurtle says:

        In this case, I think it’s because the head of the snake is so vulnerable. I’d use Wolfie or Feith to get to Rummy, but if I could get there without them, well, it’s Rummy I really want. And the odds are good he’d take the others with him, IF we could finger him.

        To get to bush or Cheney, we’d have to run the maze. Rummy is one way, but I think Gonzo will crack first.

        Boxturtle (Hey Gonzo! First rat gets the best deal!)

          • BoxTurtle says:

            Yeesh! Cthulhu got nothing on those.

            Didn’t mean to imply I didn’t want Wolfie to stand trial, just that of the three of them Rummy is the easier target. If I’ve got limited ammo (Code Pink ain’t rich), I aim where I’m most likely to hit.

            Loo Hoo, while I found that funny I think they could have chosen a better spot to jump him. Not out of any respect for Yoo, but those students (for whatever reason) paid significant money to get into that class.

            Boxturtle (Imagine if he’d found a hooded clown in an orange jumpsuit in the drivers seat of his car)

          • klynn says:

            Back in the mid eighties, the former Soviet Union intel community, (KGB plus Intourist etc…) would refer to our CIA as “the Beast” and our other government agencies as “the Eagle.”

    • BoxTurtle says:

      AEI = Wingnut welfare.

      Still, he did better than Gonzo. Yoo appears well protected at his university post (He’s teaching LAW! *spit*), and Rummy is making enough off speeches to friendly audiences that he need do nothing else. Kind of a mixed bag for ex-BushCo folks. It looks like Cheney’s folks did okay to pretty well, Bush’s not so much.

      Boxturtle (I suppose the message is back the power, not the figurehead)

  12. alinaustex says:

    So these fascist wannabe tools aka the neocons wanted to use the military to spy on us here in these United States – It appears that much of this patently illegal activity starts and stops at the VEEPs shop -even though it cuts across differnet federal ‘turfs’ it always wends its way back to Cheney ,Addington et al.
    It seems like in this same time frames Brent Wilkes / MZM was awarded a sizeable contract for ‘force protection ” for installations based in CONUS- And even though this contract was administered through OSD Rummy’s baliwick -it somehow had been originated by OVP minions .And that this force protection contract involved data mining domestic sources -possibly tied back to Poindexter’s TIA claptrap,
    or am I misremebering all or most of this ?

    • lysias says:

      I think it was NSA itself that was negotiating in Feb. 2001 with Nacchio of Qwest about an expansion of NSA eavesdropping that Nacchio refused to go ahead with after his lawyers told him it would be illegal.

  13. Leen says:

    “Sept. 11, 2001, actually considered using the document to justify deploying the military into an American town to make arrests.”

    What is the difference between deploying the “national guard” on college campuses during Vietnam protest or on our nations streets or deploying “the military” into an American town to make arrests .

    • tejanarusa says:

      Cheney wanted to use miliitary to arrest the guys in Buffalo.
      That’s a violation of Posse Comitatus – military may not be used within US for law enforcement purposes. Such as making arrests.

      Quelling domestic disturbances – leaving aside factual questions – does not violate Posse Comitatus Act.

    • bobschacht says:

      What is the difference between deploying the “national guard” on college campuses during Vietnam protest or on our nations streets or deploying “the military” into an American town to make arrests .

      The difference is that the National Guard is a State agency that is meant to be deployed in the State for emergencies in that state. They are supposed to be part-timers. Bush perverted the whole National Guard mission by deciding to treat them all as armed forces, which has created myriad problems at the state level. For example, when Katrina hit NO, most of the state’s National Guard, along with its equipment, was deployed in Iraq.

      IMHO this is one of the things that needs to change. The NG should go back to doing what it was meant to do. It was never meant to be an army of occupation overseas.

      Bob in HI

    • Mason says:

      The difference is the Posse Comitatus Act.

      The Governor of each state has the legal authority to call out the National Guard and that’s what happened in Ohio during the protests at Kent State. The President has no legal authority to do that or to order the military to do it and that’s why Cheney told Yoo to crank out another bullshit opinion.

  14. earlofhuntingdon says:

    I don’t doubt that Bush and Cheney’s relationship includes simmering feuds. That’s a defining characteristic of both: Shrub, for example, has been feuding with his real dad since his terrible twos. Shrub may disdain Cheney’s physical build, his age and his uppitiness. He may take for granted that he did all the work George was supposed to do. And Cheney may disdain Shrub nearly as much as Shrub disdains himself. But both know the importance of their mutual dependence.

    Their cooperative silence and protective storytelling are the linchpins that keep them out of jail. They also protect their personal networks – which gives Cheney at least continuing power – and their party. And they protect the ambitions of later generations of themselves, most immediately in the case of Liz Cheney, who has obvious ambitions to be in the public eye long after daddy is either wearing orange overalls in the Hague or has a prancing statue laid over him in Arlington. (A likelihood and irony too cruel for words.)

    Which means that talk of public feuds or competing to burnish their own images at the expense of the other is not likely to be the central theme to which both are working. That they have nearly unfettered control of their “presidential” archive for years is only one circumstance that suggests that may not be the primary dynamic between the two.

    • acquarius74 says:

      Bob, thanks for the link to Spencer’s very important article. It is way past time the CIA was reined in. The 1949 (or 47?) law which created the CIA stipulated that it was to collect and analyze intelligence information. Any operations the CIA undertook was to be at the direction of the National Security Agency. So, where does that put Condi as to responsibility for the first years of Bush/Cheney?

      • lysias says:

        Any operations the CIA undertook was to be at the direction of the National Security Agency.

        I think you mean the National Security Council (a very different entity from the NSA).

        • acquarius74 says:

          I went back and studied my source, you are right, and the distinction between the NSC and the NSA is very important.

          …When the law was passed it contained no provision whatsoever either for collection of intelligence or for clandestine activities. [I’m corrected again!]. However, it did contain one clause that left the door ajar for later interpretation and exploitation. The CIA was created by the NSA/47 and placed under the direction of the NSC, a committee. This same act had established the NSC at the same time. Therefore, the CIA’s position relative to the NSC was without practice and precedent; but the law was specific in placing the Agency under the direction of that committee, and in not placing the Agnecy in the Office of the President and directly under his control. In conclusion, this act provided that among the duties the CIA would perform it would:

          ……(5) perform such other functions and duties related to intelligence affecting the National Security as the NSC may from time to time direct.

          [the CIA worked their mind-bending magic and] During the summer of 1948 the NSC issued a directive, number 10/2, which authorized special operations, with two stipulations: (a) Such operations must be secret, and (b) such operations must be plausibly deniable. These were important prerequisites.

          Excerpt on page 98, The Secret Team, pub 1973 – author, AFRET Col. L. Fletcher Prouty

          [emphasis mine. Lysis, I am not presuming to enlighten you, but myself and any others here who might benefit. Thanks for drawing my attention to this vital distinction.]

  15. kgb999 says:

    OT:
    Anyone else shocked by this post from FDL last night highlighting a report published recently in the Colorado Springs Gazette? If you missed the story about soldiers in Iraq cutting out people’s brains and driving around with mutilated bodies strapped to the hoods of their humvees … then coming back to Colorado and committing murder; it’s an interesting bit.

  16. prostratedragon says:

    As those shadowy figures that had long been spotted massing on the horizon began chanting his name while holding what appeared to be a rail, Paul Wolfowitz was eased out of the Defense Deputy post into the presidency of the World Bank in 2005, the latter being a handy plaything available for the disguising of a firing as well as the latest agency ripe to be Bushicized.

    Wolfowitz only lasted a couple of years in the World Bank post, but that apparently was long enough to obscure the centrality of his role in the Iraq debacle from the scorching searchlights of our ever vigilant press. (Note the opportunity to “no comment” questions on Iraq; that and a little elbow grease is that.)

  17. bobschacht says:

    OT?
    Amnesty International is reporting that

    ”There are serious reports White House Counsel Greg Craig is under pressure to resign. He was the prime mover for releasing the torture memos and signing the Executive orders to close GTMO. It signals how fragile the support is at the White House for accountability. If he resigns it would be seen as the White House folding on GTMO closure and accountability.”
    [http://www.amnestyusa.org/war-on-terror/accountability/background-information-uphold-the-rule-of-law-on-torture/page.do?id=1641059]
    [My brower is hanging, waiting for a.tribalfusion.com, so I can’t use formatting functions]

    I had not previously heard that Craig ”was the prime mover for releasing the torture memos and signing the Executive orders to close GTMO.” Mostly, I’d heard that he was in opposition to most of the things that we want. Can someone explain this for me?

    Bob in HI

    • prostratedragon says:

      That’s funny … my memory is exactly the same as yours. I guess we were just trapped in bizarro world a few weeks ago.

      [Grrrr …]

      • BoxTurtle says:

        Ditto. I remember him being one of the keys against release. However, I found this, which seems to indicate that we’re all three confuddled.

        Boxturtle (Wouldn’t be the first time for me…not even the first time today)

        • prostratedragon says:

          Well, thanks, but I’m staying where I am until I recall/dig up why I so definitely had the opposite impression.

          The smoke tends too much toward the thick of late.

    • acquarius74 says:

      Bob, I read today in rawstory (I think, will check) that Craig was the go-between for Whitehouse and Rove in the special arrangements that resulted in Rove and Miers finally appearing (no oaths, closed doors) before the House Judiciary Committee. Said Craig was formerly cousel for Rove, and they were “friends”, and therefore should have stayed out of it.

      This may be the unseen hand of Conyers, you think?

      Bob, I’ll find the link, then will you post a diary including that pic of Rove? (I can’t do pics). It makes one want to do violence to the screen.

  18. klynn says:

    ”There are serious reports White House Counsel Greg Craig is under pressure to resign.

    Under pressure to resign? Pressure from?(please insert individual, group or country, or a combination of those.)

    There is almost an air of “blackmail” in that “pressure”.

    • Hmmm says:

      Assuming any truth to the story — risky, I realize — then yes, possibly, otherwise any ‘pressure’ brought would have no teeth. Since it would be irresponsible not to speculate, the questions would then seem to become:

      not just (1) What has Craig been doing, or what is he likely to do in the future, that somebody else would dislike enough to risk blackmail?,

      but also (2) What has Craig already done that would expose himself to blackmail?

      I sure don’t know the answers, so I ask in case anyone else here does.

      Also I somehow previously missed that he’s personally tied to Rove, that’s just plain weird.

  19. wohjr says:

    @Bob-

    My impression was the same, something strange is going on. And for another question I ask from time to time but usually get no answer to…

    What is the deal with Dawn Johnson? Who is running the ship at OLC? Are the deputy positions also subject to senate confirmation? Is Marty Lederman there yet?

  20. BayStateLibrul says:

    OT, big night at the Fens…
    Jim Rice’s #14 will be retired next to Teddy, Yaz, Doerr, Cronin, Pesky,
    Fisk, and Jackie Robinson.
    I’m about to crack open a Beck’s Beer… (No, Obama didn’t invite me to
    the WH). I don’t drink the Blue Moonie.

  21. WilliamOckham says:

    I’m not sure I agree with the premise of this post. The 10/23/2001 memo certainly was an ex post facto justification for the “PSP”, but it was also a justification for the sort of military deployment envisioned in the Lackawanna case. To wit:

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

  22. JasonLeopold says:

    ….”ought to be the tip off to look further, to question the facade.”

    Indeed. Thanks for the reminder. Appreciate it.

  23. Hmmm says:

    OT — Large Orange has some data backing up an assertion that Dodd received market rate on his Countrywilde mortgage, not a preferential rate. Also, who the hell is leaking the closed-door hearing testimony in the first place? Is that attack of a piece with the Craig attack? Kristol is calling for all-out attacks on the administration and their helpers at the moment.

  24. Rayne says:

    bmaz (59) – yes, AGAG should have been impeached, as John Dean suggested what now seems long ago. But impeachment was never really an option while Bush/Cheney were in office.

    behindthefall (61) – agreed, AGAG gave what was little more than a wonky version of Abbott & Costello’s “who’s on first” routine. But it was parsing of a caliber equal to the lawyering which went into the analysis and conclusion provided in the document: transparent and weak in intellect at best.

    acquarius74 (72) – the two stipulations of secrecy and plausible deniability are the first and biggest failings of any covert operation Cheney tried to put together using military resources. It’s bloody difficult without willfully circumventing Congress to make any military action secret, and any military activity by definition is not deniable. Any activity which required these features should have been the absolute domain of CIA.

    alinaustex (27) – any chance you have links or dates to those points about Wilkes/MZM/CONUS? It’d be nice to build up some data to cross-match against the timelines, thanks.

    • bmaz says:

      It was a possibility after January 2007; with control of the House it was possible had Pelosi and Hoyer allowed it. Would ultimate conviction on the charges been possible? That is impossible to say without seeing the evidence set produced by an impeachment inquiry. Just the effort would have been meaningful to reestablish separation of powers and Congressional prerogative; not to mention the invocation of the enhanced powers available against the Executive in an impeachment investigation.

      • Rayne says:

        This is where being a political activist or not becomes obvious.

        The reality to those of us who are political activists is that some people who appear to be Democrats are not. We can see that right now in our inability to pass real health care reform with a public option.

        There were even fewer real Democrats in the 110th Congress, i.e., impeaching anybody who didn’t get caught in flagrante delicto with a live boy, dead girl, aborted fetus, or a Democrat while getting a blow job was simply not going to happen.

        Would it be nice and the right thing if it had? Hell yeah. But not grounded in reality now that we can see all the cards on the table.

  25. Hmmm says:

    …any military activity by definition is not deniable.

    Not to challenge you impolitely or anything, but why do you say that? I’m getting the sense that the whole innovation being alluded to here is not just the domestic deployment of the military, but that new kinds of deployment have been, or may have been, involved than what we’re accustomed to the military doing overseas. The warrantless domestic communication surveillance was deniable, in fact was denied for a long time. If domestic black bag ops by the military have happened then they haven’t been acknowledged either.

    • Rayne says:

      Well, let me back up a moment and say that under the Bush/Cheney regime, the definition of “war” changed to any organized activity by a group against the nation/state of the U.S., regardless of whether the activity was inside or outside of the U.S.

      The only time military resources should be deployed is outside of the country against a nation-state , or in concert with other impacted nation-states in an enforcement capacity outlined by international law or by law of other impacted countries.

      A military action against an organized group outside of the U.S. without the consent of the country in which the action takes place is tantamount to an act of war. This was one of the problems with JSOC-based covert ops in “friendly” countries — we cannot deny that we were violating their sovereignty since we did not have either overt or covert permission to be there. So far we’ve gotten off the hook. Or at least it appears we have, in spite of major fuck-ups in Kenya and Paraguay, to name two locations.

      • Hmmm says:

        Ah, thx for clarifying. I guess I was reacting to the “not deniable” part of “…any military activity by definition is not deniable”, whereas it sounds like you were kinda working on the “is” part. (Clintony, I like it.)

  26. prostratedragon says:

    D’oh! Could be a post by some blogger named Emptysomething had some influence on my perception of Craig as unlikely to press the progressive side of most things at the White House. (Don’t forget this one.)

    I’ll bet there’s more —it is a firm impression— but that’s all the time I have for it now.

  27. rapier says:

    Is the NSA officially part of the DOD? It may almost be a distinction without a difference but legally I want to know if it is.

    • Hmmm says:

      Oh I dunno, there’s a nice sort of direct corporate accountability factor mixed in there too.

  28. cinnamonape says:

    One other critical difference is that the National Guard, at least when deployed domestically cannot create a military tribunal system for civilians, the Governor cannot void habeas corpus, and there likely could not be extradition beyond the boundaries of the state. That might be possible if the National Guard was “Federalized”, but I still doubt that it would be easily possible.

    IMO Bush didn’t go with the Cheney plan on Lackawanna for the most simple of reasons. Such use of the military for domestic purposes would very rapidly have been played out in the courts. Bush wasn’t into “testing” the shaky legal opinions of John Yoo n the Federal Courts. They wanted to keep the actions hidden and only rely on the legal legerdemain as a fall back justification IN the courts. The actions would likely be over-ruled, but the legal vagueries might keep them out of jail.