What Happened to that OTHER OPR Report?

Remember the OPR Report? No, not the OPR Report on John Yoo’s laughably bad torture memos. I’m talking about the OPR Report on John Yoo’s even worse memo(s) authorizing domestic surveillance. The Torture OPR Report notes that it was the domestic surveillance memo, and not the torture memos, that first clued Jack Goldsmith into how dangerous John Yoo was.

Because of the problems with Yoo’s NSA opinions, Goldsmith asked Philbin, who was familiar with Yoo’s work at OLC, to bring him copies of any other opinions that might be problematic.

And it was OPR’s investigation into the domestic surveillance memo–not the investigation into torture memos (as far as we know)–that George Bush tried to spike by refusing investigators the clearance to conduct the investigation.

Last we’ve heard official mention of this OPR investigation was last July, in the combined IG Report on warrantless wiretapping. At that point, we know, the investigation was not yet complete.

Title III of the FISA Amendments Act required that the report of any investigation of matters relating to the PSP conducted by the DOJ Office of Professional Responsibility (OPR) be provided to the DOJ Inspector General, and that the findings and conclusions of such investigation be included in the DOJ OIG review. OPR has initiated a review of whether any standards of professional conduct were violated in the preparation of the first series of legal memoranda supporting the PSP. OPR has not completed its review.

Since then we’ve heard nothing.

It turns out, I asked DOJ a week and a half ago about the report and got a “Oh, let me do research.” I did a follow-up last week (as it happens, on Friday, the day Dawn Johnsen withdrew her nomination) and got a very different response: “We don’t comment on OPR investigations.” Now, perhaps that’s just a prudent response after all the accusations Yoo and Bybee made that OPR was leaking information on the Torture memo investigation.


I find the secrecy around the domestic surveillence OPR Report all the more interesting given that DOJ still hasn’t decided what to do about the 2006 White Paper used to justify warrantless wiretapping after Jim Comey and Jack Goldsmith realized the inherent powers argument failed. Mind you, David Barron’s OLC passed what appears–from Glenn Fine’s description–just as troubling as those two earlier memos back on January 8, 2010. So maybe it doesn’t matter. Maybe we’re doomed to have OLC recklessly authorize illegal wiretapping of Americans in the dark of night, no matter who’s in charge there.

Nevertheless, it does seem worthwhile to remember that John Yoo was investigated not just for his egregious torture memos, but also for saying the President didn’t have to follow the law–even the laws saying that Presidents can’t wiretap Americans.

23 replies
  1. klynn says:

    I find the secrecy around the domestic surveillence OPR Report all the more interesting given that DOJ still hasn’t decided what to do about the 2006 White Paper used to justify warrantless wiretapping after Jim Comey and Jack Goldsmith realized the inherent powers argument failed.

    Would more phones calls asking about the status help? One of us could post the phone number…OPR at least needs a statement about their secrecy around the OPR report.

  2. orionATL says:

    john yoo – the manchurian candidate.

    maybe his ancestors hail from north korea – the pyong yang candidate.

    it’s inconceivable to me that the ovp could have seen yoo as anything but a too willing legal hack, and of course a very willing subversive of the federalist society stripe.

    how much more damage could a second-generation immigrant do to his country than john yoo has done to the united states?


    there is australian immigrant rupert murdoch and his fox news and wsj propaganda corporations.

  3. BoxTurtle says:

    No president is ever going to give up the intelligence capability of hoovering and archiving everything.

    Now, if we could somehow make those records accessable in a criminal investigation, like say we want Blago’s conversations with Rahm. Or Karl’s conversations with Judy. Or any GOPer’s conversations with major campaign contributor. IF. Then we just might get able to get this under control.

    I was very hopeful when Harmon’s conversations became public that she might act. She appears stifled.

    Boxturtle (Get a warrant, that’s all we’re saying)

  4. Gitcheegumee says:

    O/T,but somewhat related in the bigger sphere of things:

    Cerberus buys Dyncorp

    ExecutiveBiz (blog) Cerberus slated to purchase DynCorp in $1.5 billion deal‎ – 10 hours ago

    By Dana Hedgpeth WASHINGTON— Cerberus Capital Management, a New York-based private investment firm, is expected to buy DynCorp International of Falls Church …
    Boston Globe – 354 related articles »

    Cerberus to Buy DynCorp for $1.5 Billion – DealBook Blog – NYTimes.comApr 12, 2010 … DynCorp International, the private military contractor, said on Monday it has agreed to sell itself to Cerberus Capital Management for $1.5 …

    Cerberus Agrees to Acquire DynCorp in $1 Billion Deal (Update2 …Apr 12, 2010 … DynCorp is Cerberus’s third acquisition announced this year, according to data compiled by Bloomberg. Cerberus agreed on March 25 to buy …

    • BoxTurtle says:

      I dunno where Cerberus got the money, I thought Chrysler soaked them. But that’s a pretty good deal. Your link is 404, alas.

      Boxturtle (the dog grows another head)

      • Gitcheegumee says:

        Apologies for the 404.

        I was reading about this subject last night,and Cerberus acquired a Massachusetts based medical entity ,also, just this past month,too.

        WHERE is ALL this ca$h coming from? Well, just a guess, but perhaps from the vampire market in blood plasma that Cerberus has been making a “killing” in,pardon the unpardonable pun. I will post a link of that issue,also.

        Here are somme additional links to try,BT:

        Cerberus to acquire DynCorp for $1 billion | ReutersApr 12, 2010 … CHICAGO (Reuters) – Cerberus Capital Management LP CBS.UL said on Monday that it would buy defense contractor DynCorp International Inc (DCP …

        JSM Financial: Cerberus Capital Management to buy defense …Apr 13, 2010 … JSM Financial: Cerberus Capital Management to buy defense contractor DynCorp International. The $1 billion cash deal will be one of the …
        http://www.prlog.org/10624068-jsm-financial-cerberus-capital-management-to-buy-defense-contractor-dyncorp-international.html – 5 hours ago

        Cerberus Capital Management to buy DynCorp; stocks rise 48 …Apr 13, 2010 … This article from the Washington Post discuses Cerberus Capital Management’s intent to buy defense contractor DynCorp in a deal estimated to …
        pmc.foreignpolicyblogs.com/…/cerberus-capital-management-to-buy-dyncorp-stocks-rise-48/ – 40 minutes ago

      • Gitcheegumee says:

        Here’s a comment I made on a blog here, in January, regarding the blood plasma business run by Cerberus. The Alternet piece is a MUST read -but not for the faint of heart.

        Cerberus gives bloodletting a WHOLE new meaning.

        Gitcheegumee January 24th, 2010 at 6:25 pm 154
        In response to PJEvans @ 122 (show text)
        PJ,you GOTTA read this story about Cerberus and the plasma rip off they are doing -making billions for being bloodsuckers-literally.

        Cerberus Capital: Literally Blood-Sucking the Poor to Make Their …25 posts – 5 authors – Last post: Jan 15
        You might think that America would be ashamed of being the world’s top vampire nation. But actually, to the faux-market freaks like Cerberus …
        http://www.alternet.org/…/cerberus_capital:_literally_blood-sucking_the_poor_to_make_their_billions/?… – Cached

      • Gitcheegumee says:

        Cerberus Strikes Hospital Pact – WSJ.comMar 26, 2010 … Cerberus Capital Management struck a deal to acquire Caritas Christi Health Care, a large Massachusetts hospital chain, the latest in a …
        online.wsj.com/…/SB20001424052748703409804575144200795694706.html – Cached

        Cerberus’ $800M Hospital Buy — a Wager on Healthcare Reform …Mar 29, 2010 … Cerberus to Buy Massachusetts Hospital Group … that it had agreed to be acquired by the private equity firm Cerberus Capital Management in …
        industry.bnet.com/…/cerberus-buy-of-caritas-christi-hospitals-shows-confidence-in-healthcare-future/ – Cached

        Cerberus to Buy Caritas Christi in $830 Million Deal (Update2 …Mar 25, 2010 … Cerberus Capital Management LP agreed to acquire Caritas Christi … by large teaching hospitals such as Massachusetts General Hospital, …

  5. harpie says:

    Nevertheless, it does seem worthwhile to remember that John Yoo was investigated not just for his egregious torture memos, but also for saying the President didn’t have to follow the law–even the laws saying that Presidents can’t wiretap Americans.

    But they were following the Constitution, Marcy…see:

    September 25, 2001 -Memo written by Yoo at OLC to David S. Kris, Ass. Deputy AG, and is called “Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the “Purpose” Standard for Searches. It concludes: “For the foregoing reasons, we believe that changing FISA’s requirement that “the” purpose of a FISA search be to collect foreign intelligence to “a” purpose will not violate the Constitution.” [Repudiated by Bradbury on January 15, 2009]; made public March 2, 2009.


  6. Frank33 says:

    Speaking of Yoonitary Yoo, I found this factoid. Although KSM has probably been tortured into a babbling idiot, a trial revealing neo-con secrets would help AQ. But a trial would probably reveal more Saudi Arabian complicity. Elena Kagan destroyed documents that had evidence showing AQ is controlled by Saudi Arabia. Elena Kagan and John Yoo, two peas in a pod of pod people.

    Others who criticized Holder’s decision expressed concern about the nation’s ability to control classified information. In the Wall Street Journal, former Justice Department lawyer John Yoo wrote that trying KSM in civilian court would provide an “intelligence bonanza” for Al-Qaeda. While we shouldn’t be surprised by now of Yoo’s unparalleled ability to look the other way when the law repudiates his personal beliefs, it is worth noting that military commissions use the same law to protect sensitive national security evidence as the federal courts, the Classified Information Procedures Act (“CIPA”).

    • BoxTurtle says:

      I am unaware of any failure of CIPA and until they show me one, I’m going to consider that argument against real trials rrrrrrrrrubbish.

      Boxturtle (Said just like Glinda did in the wizard of Oz)

  7. bgrothus says:

    This is, of course, the same Elena Kagan discussed for SCOTUS. Unreal.

    I read a piece the other day about Yoo and his tiny niche at Berkeley, where he regales himself on his petard.

    • Gitcheegumee says:

      My first awareness of Kagan was back in late January of this year,when she was reported to be in “secret” negotiations with the big tobacco companies,in their attempt to avoid a court trial.

      The significance of the date is that these sotto voce meetings were in the immediate time frame preceeding the SCOTUS ruling on corporate personhood, January 21,2010 . The Citizens United vs. FEC ruling removed restrictios on corporate spending and expanded free speech, just to reiterate.

      I posted several comments here and at FDL re the Kagan meetings with tobacco, and will submit the links donthread,should anyone wish to review them.

      • maryo2 says:

        HuffPo is reporting that Sen. Lindsey Graham supports Kagan. Given Pres. Obama’s enjoying the fruits of Bush’s executive power grab and his administration’s way of working behind the scenes, it appears that Kagan’s nomination to the SC is a done deal.

        I think progressives need to get loud about stopping this ASAP. I am notifying my Senators and Rep now.

  8. mattcarmody says:

    This whole Bush/Obama executive branch way of spying on Americans while torturing anyone they choose is pretty close to the Huston Plan back in Nixon’s day, Operation Gemstone. Supposedly John Mitchell nixed the idea but it looks like the acolytes who were in the shadows kept the plans around for future reference.

  9. alank says:

    I don’t have a sense of the hierarchy at OLC and how many professionals are among them. The focus on the handful of jurists makes it seem a small cabal. Be that as it may, the origins of the legal opinions were David Addington, tacitly, if not explicitly and he was merely echoing the opinions of the vice president who had entertained these notions that Yoo and others “validated” since his first stint in the WH, in the early ’70s. The general issue of executive authority and the vast extension of same goes further back, perhaps to Lincoln.

    A more interesting question might be when did the OLC become an instrument of presidential power expansion?

    • spanishinquisition says:

      “A more interesting question might be when did the OLC become an instrument of presidential power expansion?”

      Probably since its inception. Just logically if it’s run by a Presidential appointee, the President (whoever it is) is going to look for someone who is going to support them rather than oppose them – it’s a conflict-of-interest by design.

      Much of what the OLC does seems like it would be better handled by someone outside the Executive Branch (like the CBO) as providing checks-and-balances rather than as an Executive Branch position where people are put in the position of telling their boss “no” as well as the boss deciding who gets in there in the first place.

  10. Gitcheegumee says:

    Lanny Davis’s Rent-a-Wisdom | EmptywheelJan 20, 2010 … Big Tobacco Seeks Deal in Federal Racketeering Case … Tobacco executives reportedly asked Solicitor General Elena Kagan to drop an appeal …

    Martha Coakley and “Sidecar” Reconciliation: The Public Option …Jan 19, 2010 … Washington Post Big Tobacco tries to avoid trip to Supreme Court‎ – 2 … Elena Kagan in an effort to avoid the government s last-ditch … …

    The Obama Year One Retrospectives, And The Progressive Choice …Jan 18, 2010 … Although the four big tobacco firms, which control 90% of US cigarette … Elena Kagan in an effort to avoid the government s last-ditch … …

    Supreme Court Unleashes Corporate Campaign Cash In Citizen’s …Jan 21, 2010 … Big Tobacco Seeks Deal in Federal Racketeering Case … Tobacco executives reportedly asked Solicitor General Elena Kagan to drop an appeal …

    NOTE: There are many entries here at the search engine re: Kagan and tobacco to select from .

  11. cpapermaster says:

    I’m new to this site, and having trouble following the complicated facts discussed, but I wanted to share something I found today re. John Yoo and ending the ban on assassination. Sorry if you already have this. Cynthia Papermaster, Berkeley

    U.S. law professor proposes assassinating more suspected terrorists

    By Paul M. Barrett
    The Wall Street Journal

    09/12/05 “Post Gazette” — — In June, about 100 people gathered at the American Enterprise Institute, a conservative Washington think tank, to hear a lecture by John Yoo on “fighting the new terrorism.” Mr. Yoo recommended an unusual idea: assassinating more suspected terrorists.

    A law professor at the University of California at Berkeley, he said his proposal would require “a change in the way we think about the executive order banning assassination, which has been with us since the 1970s.” Such a change is needed, he said, because it is wartime: “A nation at war may use force against members of the enemy at any time, regardless of their proximity to hostilities or their activity at the time of attack.”

    Mr. Yoo, 38 years old, is no ordinary ivory-tower theorist. During a two-year stint at the Justice Department from 2001 through 2003, he wrote some of the most controversial internal legal opinions justifying the Bush administration’s aggressive approach to detaining and interrogating suspected terrorists.

    Some of those memos have become public, but not all of them. Asked after his AEI talk whether there is a classified Justice Department opinion justifying assassinations, Mr. Yoo hinted that he’d written one himself. “You would think they — the administration — would have had an opinion about it, given all the other opinions, wouldn’t you?” he said, adding, “And you know who would have done the work.”

    A spokesman for the Justice Department declined to comment.

    Mr. Yoo is playing an instrumental role in redefining the murky area where law intersects with foreign policy. The change underpins President Bush’s claim that he possesses the sort of far-reaching emergency powers exercised by past presidents during conventional wars.

    Mr. Yoo, like others in the academic clique known as “sovereigntists,” is skeptical of international law and the idea that international relations are ever based on principle, as opposed to self-interest. Mr. Yoo argues that the Constitution gives Congress limited authority to deter presidential actions in foreign affairs. The judiciary, he says, has almost none.

    At the Justice Department, Mr. Yoo crafted legal arguments for the president’s power to launch pre-emptive strikes against terrorists and their supporters. He molded a theory for not applying the Geneva Conventions to captured terrorist suspects. And he interpreted the federal antitorture statute as barring only acts that cause severe mental harm or pain like that accompanying “death or organ failure.”

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