John Yoo’s Assistance in Starting Iraq War Might Help Obama Avoid an Iran War

Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).

The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.

Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.

Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.

That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.

Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.

This memo authorized the Executive to withhold WMD information in Bush’s 2003 State of the Union address

First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.

Boy how wrong was I. Boy how inadequately cynical was I.

Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.

Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:

It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.

Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?

In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.

On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.

Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.

This memo means Obama doesn’t have to share anything about the Iran deal it doesn’t want to

Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.

By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.

If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.

Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.

I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).

A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations  — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.

The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.

I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. wallace says:

    quote”John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.”unquote

    So, some lawyer for the Executive, can write a memo, totally negating certain laws, thereby giving themselves a get out of jail free card while giving the Executive the legal means to raise his middle finger to Congress. Marvelous. Isn’t the rule of law grand?

    Next thing you know some schmuck AG will write a memo giving King Kill List the right to murder Murikan citize…wait…er.. nevermind. I forgot. Dumb me.

    sheeezushchrist. next thing ya know, they’ll start arming drones over Murika..er…wait..

    http://www.thedailybeast.com/articles/2015/08/26/first-state-legalizes-armed-drones-for-cops-thanks-to-a-lobbyist.html

    I’ve got $10 that says the LAPD will be the first to mount a machine gun on them.

    Iran? bah.

    • bloopie2 says:

      It is becoming so easy to do just about anything with a drone, that you will be seeing, over the next few years, many new and creative and frightening uses of them, by ordinary (nutso) citizens, not just by the fuzz. Carrying cameras, or weapons, or dropping powders or liquids, doing their deeds, then self-destructing like Mission : Impossible tapes. I’ll see your $10 and raise you $10 that within five years some DHS type says that drones should be illegal.

    • Ambrellite says:

      Congress and the courts have repeatedly let the executive run roughshod over the law. They’re self-interested entities, and fighting the executive branch on national security issues is not in their interest.

  2. bloopie2 says:

    Maybe Obama will give all the Iran Deal documents (except the ones it withholds, of course) to the CIA (because the CIA basically is the executor of foreign policy any more), then they can set up a secure room for the Senators to view it, and if the Parchments of Parchin accidentally get tossed in the mix, and the Senate finds that out, then the CIA could spy on the Senate to find THAT out, and then the Senate could spy back on the CIA to find THAT out, then … nah, that could never happen –too far-fetched.

    • wallace says:

      quote”…nah, that could never happen –too far-fetched.”unquote

      Hahaha! Perfect. Far fetched. Hahahaha…

      maybe in another universe.

  3. Denis says:

    “Boy how wrong was I. Boy how inadequately cynical was I.”
    .
    Best thing you’ve written: An honest, funny acknowledgement of fallibility. I’ve moved this blog up 5 places in my morning reading list.
    .
    The best example of this rare skill I know of was Tiger Woods. He shot an embarrassing 80 at the US Open this year. Ricky Fowler shot an 81. In the post-round interview Woods said, “At least I kicked Ricky’s Butt.” Gotta’ be the funniest thing a jock has ever said.
    .
    What I don’t understand about Yoo’s memo and this analysis is that there is a distinction between a president’s obligations to keep Congress informed and the media spectacular of the SOTU speech. There is no Constitutional requirement that a president get up in front of the entire country and advise Congress. Some presidents have just sent Congress a letter to advise them of the state of the Union.
    .
    It’s not clear to me whether Yoo was talking about advising Congress in general or about Bush’s SOTU speech specifically. You note the timeline of the memo preceding the speech by one day.
    .
    If Yoo was saying there is no Constitutional requirement for Bush to talk about Iraq’s WMD to the whole country, I’d not find that unreasonable, as much as I detest Yoo and his crowd.
    .
    As for the 3 corollaries enumerated in the OCL memo, I’d agree with every one of them.

  4. Peterr says:

    I can’t decide if this is (1) some serious Class A trolling of Congress, or (2) a serious effort to preserve expansive executive authority and autonomy.
    .
    Re (1): Trolling doesn’t get any better than telling Boehner et al. that you’re just following the precedent set down by Reagan and Dubya. “You want to argue with me? Fine, then let’s put Poindexter, Yoo, and others on trial.”
    .
    Re (2): See warrantless wiretaps, proclamations of state secrets, . . .
    .
    I want to believe it’s (1), but there’s enough history with (2) that I can’t be sure. Of course, it could also be both, in a weird way. One segment of the executive branch who want to troll Congress said “let’s put the Yoo memo out there” arguing that it would put the GOP in an untenable position. Another segment of the executive branch said “Sure” thinking that the GOP would ignore the logical inconsistency here (a good bet, IMHO) and it would allow them to continue keeping Congress in the dark.

    • emptywheel says:

      And definitely read the explanation in Aftergood’s piece. While giving him the OLC memo, DOJ basically said, “we don’t believe we have to give this to you at all and normally wouldn’t but we’ve made a discretionary decision to do so.”

      • wallace says:

        quote”And definitely read the explanation in Aftergood’s piece. While giving him the OLC memo, DOJ basically said, “we don’t believe we have to give this to you at all and normally wouldn’t but we’ve made a discretionary decision to do so.”unquote

        Fantastic. Let’s write this on every tombstone of every innocent victim in Iraq who were vaporized torn to shreds by virtue they were in the wrong place..at the wrong time..when the psychopaths of America decided they could write a memo giving themselves the right to do so. I’m sure the victims will forgive murika.

        fuck you America.

      • Peterr says:

        Yeah, that explanation fits my theory of both trolling and preserving/extending executive autonomy and authority. It makes the trolling even more pointed — “we’re making information known to the public that we are not required to make known, explaining why we won’t make known other information to Congress that we are not required to make known” — and also is a big Executive Branch finger to Congress about executive authority, delivered via a FOIA release — “We won’t even dignify your demands with a direct reply.”

  5. bmaz says:

    “The memo is, even by Yoo’s standards, inadequate and poorly argued.”

    Heh. That is saying something.

  6. galljdaj says:

    Our Govt HAS PLOTTED CRIMES! And. Wrote White Paper Opinions to Justify the hiding of the Constitutional Requirements. And the hiding of facts that would bring about Prison terms for the crimes!

    Where are the Screams for the mandatory use of RICO? Are there not Citizens in Our Prisons there under conviction of violation of the RICO Laws? Is there a secret Executive Order that has removed RICO from Our Law? Or has established a discrimination order establishing another level of citizenship?

  7. galljdaj says:

    Note: If RICO is not the appropriate statue, then, certainly Treason is, as Americans have lost their lives, been injured, or suffered losses, due to the crimes!

  8. What Constitution? says:

    As clever as it may seem for Obama to invoke “what’s sauce for the goose…” to rely upon the thought processes of no less a criminal as John Yoo when it suits Obama’s convenience, this is but another example of Obama normalizing the malevolence of the Bush administration’s assault on the Constitution. And it’s unfortunate that Obama is doing so just as Vice Criminal Dick Cheney revels in his state of non-incarceration to spout more vile tripe about, oh, everything he should be rotting in prison about.

    John Yoo is an abomination and an embarrassment. That he could be considered situationally convenient just so Obama can sidestep momentary inconvenience is tragic.

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