Here’s how I understand the white paper AIG just used to convince Tim Geithner that, while the US government can force car companies to cut the wages of line workers, the US government cannot force banksters to cut the wages of the thugs who broke the global financial system. There’s a lot of mumbo jumbo about contract law, but that’s not the real reason AIG is arguing Geithner can’t strip the bonuses. It’s the "business reasons" that amount to a deliberate threat:

For example, AIGFP is a party to derivative and structured transactions, guaranteed by AIG, that allow counterparties to terminate in the event of a “cross default” by AIGFP or AIG. A cross default in many of these transactions is defined as a failure by AIGFP to make one or more payments in an amount that exceeds a threshold of $25 million.

In the event a counterparty elects to terminate a transaction early, such transaction will be terminated at its replacement value, less any previously posted collateral. Due to current market conditions, it is not possible to reliably estimate the replacement cost of these transactions. However, the size of the portfolio with these types of provisions is in the several hundreds of billions of dollars and a cross-default in this portfolio could trigger other cross-defaults over the entire portfolio of AIGFP.

Translated, I take that to mean that AIGFP is a party to a bunch of contracts insured by AIG the US government. And if AIGFP somehow does something that equates to a default on those contracts, then AIG the US government is on the hook for hundreds of billions of dollars. 

The white paper goes on to explain just one scenario that might trigger a default in terms of these contracts.

Departures also have regulatory ramifications. As an example, the resignation of the senior managers of AIGFP’s Banque AIG subsidiary would allow the Commission Bancaire, the French banking regulator, to appoint its own designee to step in and manage Banque AIG. Such an appointment would constitute an event of default under Banque AIG’s derivative and structured transactions, including the regulatory capital CDS book ($234 billion notional amount as of December 31, 2008), and potentially cost tens of billions of dollars in unwind costs. Although it is difficult to assess the likelihood of such regulatory action, at a minimum the disruption associated with significant departures related to a failure to honor contractual obligations would require intensive interactions with regulators and other constituents (rating agencies, counterparties, etc.) to assure them of the ongoing viability of AIGFP as well its commitment to honoring counterparty contracts and claims.

I take this to mean that if a bunch of AIGFP managers quit because they didn’t receive bonuses promised in their contracts, then France could, if it wanted, to appoint its own designee. And if that happened, then it would equate to a default and those contracts would kick in, at a cost to AIG the US government of at least tens of billions.

In other words, I take this to be a threat: "if you don’t give us our bonuses, we’ll trigger a default event that will cost AIG the US government tens of billions of dollars."  It’s just a polite way of saying, "Pay us the $100 million ransom or we start exploding the suicide bomber vests we’re wearing."

Frankly, I have no idea whether this particular threat–France responding in a way that would set off a default–is real, or whether there are similar events that those AIGFP managers demanding their ransom could easily trigger.

But what they’re doing is pointing to one relatively preventable area, noting that we might be able to defuse the explosion before it went off if we worked hard enough with the French, but saying that that, in general, is the kind of thing the AIGFP managers might contemplate if they don’t get their bonuses.

AIG agreed to pay the guys whose gambling AIG the US government insures hundreds of millions of dollars in bonuses. And the gamblers are now saying they would be willing to blow their own gambles–ignite their semtex vests–if we refuse to pay up.

I’m still angry that you did not pardon Scooter. "I don’t think was appropriate," for you to have ordered Libby–on the morning of June 9, 2003, to respond to Joe Wilson’s assertions about our case for war against Iraq, and to have told me it was okay to "get the whole story out," just before Scooter tried to launder this through Judy Miller on July 8, 2003 and then Novak on July 9, 2003, only to let him take the fall for you when Patrick Fitzgerald started investigating who leaked Valerie Wilson’s name.

You asked Scooter to "stick his neck in the meat-grinder" to rebut Joe Wilson’s criticisms, and now you have "in effect left Scooter hanging in the wind" for something you ordered.

Let this be a warning to you. I consider this fair game [oh wait–that’s Rove’s word] for my memoir, which I’m currently shopping.

Love,

Dick

The NYRB New Yorker has a piece with long excerpts from the leaked Red Cross report on American torture of high value detainees. (h/t scribe; corrected per scribe) Read it. It’s chilling in its systematicity–the constant involvement of doctors, the efforts to hide any marks of torture, the invention of clinical language to describe torture.

I’ll return to the report, but for the moment just one observation.

Amid a slew of details on the treatment of Abu Zubaydah, the article describes Abu Zubaydah learning that he was the guinea pig for these techniques.

We do not know if the plywood [to minimize the damage from slamming him against the wall] appeared in Zubaydah’s white room thanks to orders from his interrogators, from their bosses at Langley, or perhaps from their superiors in the White House. We don’t know the precise parts played by those responsible for "choreographing" the "alternative set of procedures." We do know from several reports that at a White House meeting in July 2002 top administration lawyers gave the CIA "the green light" to move to the "more aggressive techniques" that were applied to him, separately and in combination, during the following days:

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me…. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.

5.

All evidence from the ICRC report suggests that Abu Zubaydah’s informant was telling him the truth: he was the first, and, as such, a guinea pig. Some techniques are discarded. The coffin-like black boxes, for example, barely large enough to contain a man, one six feet tall and the other scarcely more than three feet, which seem to recall the sensory-deprivation tanks used in early CIA-sponsored experiments, do not reappear. Neither does the "long-time sitting"—the weeks shackled to a chair—that Abu Zubaydah endured in his first few months. [my emphasis]

This article makes clear, then, that about two and a half months after he first woke up in US custody–so probably shortly after mid-June 2002–the US was experimenting on Abu Zubaydah, testing out various forms of torture to see which worked best and left the fewest marks.

Understand what this means: the torturers were conducting their experiments on Abu Zubaydah before John Yoo wrote up an OLC memo authorizing torture (hell–Yoo may have excluded those methods they had decided were ineffective and that my be why they told Abu Zubaydah there were no rules). The torturers were conducting their experiments with the intimate involvement of those back at the White House getting briefed and approving of each technique. And the torturers were being videotaped doing so. 

Those tapes–which in this context sound like a tool in their experimentation more than anything else–are the tapes that CIA destroyed in 2005.

Which I guess makes my question from a few weeks ago all the more pressing. Who watched these torture tapes?

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September 25, 2001 Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches authored by John Yoo. Tucked in that memo on page 10, innocuously stuck in the middle of all the Yoo goo, is this paragraph:

In order to police the line between legitimate foreign intelligence searches and law enforcement, most courts have adopted the test that the "primary purpose" of a FISA search is to gather foreign intelligence. See id.; United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert, denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d 1458,1464 (11th Cir. 1987), cert, denied, 485 U.S. 937 (1988). Not all courts, however, have felt compelled to adopt the primary purpose test. The Ninth Circuit has explicitly reserved the question whether the ”primary purpose" is too strict and the appropriate test is simply whether there was a legitimate foreign intelligence purpose. United States v. Sarkissian, 841 F.2d 959,964 (9th Cir. 1988). No other Circuit has explicitly held that such a formulation would be unconstitutional.

So it is quite possible that the reason the government today finds itself twisting in the 9th is because, at the start, they stupidly forum shopped looking for a tiny bit of extra advantage on the merits, when their whole defense rested not on the merits at all, but on states secrets, classification privilege and other obstruction. It sure isn’t the play I would have made were I in their shoes, but it is the best explanation to date for the insanity of the government not having fought tooth and nail to stay the heck out of the wooly 9th.

If that is indeed the reason, or even part of the reason, the cases were consolidated in the 9th, it was a fools errand. The 9th may have left the issue unresolved in Sarkissian, but it by no means left any indication that it would be open to a trumped up illegal skim like was being run by the "Bush Program". If the government thought they were going to build a life raft out of this thin reed, in the 9th Circuit of all places, they were stark raving mad.

In DOJ’s press release on Obama’s rejection today of the term "enemy combatant," that sentence appears at the end of the first paragraph:

In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant." [my emphasis]

That’s it. Part of the lede. They’re not using the same phrase Bush used.

Whoop.

Dee.

Doo.

They are, mind you, situating their authority to detain people solidly in the AUMF (rather than Article II) and admitting SCOTUS kicked Bush’s ass on these issues on multiple occasions.

 The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

But from this purported "refinement" of its stance toward detainees, it proceeds to reassert the role of the executive in judging which detainees to hold.

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. [my emphasis]

The President has the authority … the President determines … the President has the authority.

You see, it’s still the same unitary power, stripped of the baggage of Bush’s vocabulary. And even as they abandon Bush’s vocabulary, they progressively expand the reach of that authority to include just about all those whom Bush already determined were enemy combatants, no matter how nebulous that person’s ties to al Qaeda.

First to those who were part of al Qaeda but did not commit any crimes against the US:

Because the use of force includes the power of detention, Hamdi, 542 U.S. at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” Ex parte Quirin, 317 U.S. at 38; Khalid v. Bush, 355 F. Supp. 2d 311, 320 (D.D.C. 2005), rev’d on other grounds sub nom., Boumediene v. Bush, 128 S. Ct. 2229 (2008); see also Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4, 6 U.S.T.S. 3316 (contemplating detention of members of state armed forces and militias without making a distinction as to whether they have engaged in combat). Accordingly, under the AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the principal organizations that fall within the AUMF’s authorization of force.

And then–using language with the distinct odor of "enemy combatant"–to those who can be construed to have played a role in al Qaeda’s activitities, up to and including opposing the Northern Alliance forces that al Qaeda was fighting in 2001 before the US invaded Afghanistan, or swearing an oath (which is, after all, why Padilla and John Walker Lindh are in jail now):

Moreover, because the armed groups that the President is authorized to detain under the AUMF neither abide by the laws of war nor issue membership cards or uniforms, any determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces. In each case, given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances. [my empahsis]

Then the definition expands to include other organizations:

Nor does the AUMF limit the “organizations” it covers to just al-Qaida or the Taliban. In Afghanistan, many different private armed groups trained and fought alongside al-Qaida and the Taliban. In order “to prevent any future acts of international terrorism against the United States,” AUMF, § 2(a), the United States has authority to detain individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of co-belligerency.

Then the definition expands to include other battlefields (which gets you solidly into American-based groups):

Finally, the AUMF is not limited to persons captured on the battlefields of Afghanistan. Such a limitation “would contradict Congress’s clear intention, and unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.” Khalid, 355 F. Supp. 2d at 320; see also Ex parte Quirin, 317 U.S. at 37-38. Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. Such activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention. Cf. Boumediene v. Bush, 579 F. Supp. 2d 191, 198 (D.D.C. 2008) (upholding lawfulness of detaining a facilitator who planned to send recruits to fight in Afghanistan, based on “credible and reliable evidence linking Mr. Bensayah to al-Qaida and, more specifically, to a senior al-Qaida facilitator” and “credible and reliable evidence demonstrating Mr. Bensayah’s skills and abilities to travel between and among countries using false passports in multiple names”).

And finally, as MD points out, the Obama Administration carefully carves out the entire world save Gitmo in which the President’s authority still reigns using Bush’s discredited language.

This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. It is not, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts.

Now, to be fair, the filing also reserves the right to make new determinations of what these terms all mean. 

Through this filing, the Government has met the Court’s March 13, 2009 deadline to offer a refinement of its position concerning its authority to detain petitioners. The Court should be aware, however, that the Executive Branch has, at the President’s direction, undertaken several forward-looking initiatives that may result in further refinements. Although the Government recognizes that litigation will proceed in light of today’s submission, it nevertheless commits to apprising the Court of any relevant results of this ongoing process.

But it still reserves for the President the power to make these determinations, and it carves out every single category under which any politically charged detainee has already been held, not to mention the entire world outside of one military base on Cuba.

In short, it’s a big, fat, cynical game. A word game, like any other parlor game, giving a tired old concept a verbal facelift. Without, however, changing the concept itself.

The Obama Administration suggests in this filing it is just trying to meet its March 13 deadline. My first and best response to that is the same I used to have–as a professor–when students obviously turned in shoddy work just to meet my hardass deadlines: to tell the lazy student to start doing her work. 

"You haven’t completed the terms of the assignment. No matter whether you got this handed in by the designated deadline or not, you have not done your work. So take this back and do the work assigned in the first place. And don’t turn in this shoddy word game as serious work again."

Thus far, this is just Bush’s policies under new name. And they’re not even clever enough word games to fool most of the people–particularly the international community–these word games were designed to fool. 

A number of people, in their discussion of Sy Hersh’s revelation that Dick Cheney directed assassination squads, look to EO 12333 for some guidance on whether such assassination squads are legal or not.

Here’s attytood:

By the way, in case there’s any ambiguity on the subject, President Gerald Ford in 1975 signed an executive order that said this: : "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." It’s been upheld by every subsequent president. Apparently vice presidents are another matter.

And here’s Scott Horton:

The practice of targeted killings is controlled by Executive Order 12333, issued by President Reagan in 1981, which provides “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” There are two exceptions to this rule. One is that as a basic principle of the law of armed combat, it is permitted to strike against the command-and-control apparatus (including both political and military leaders) of a hostile force in connection with armed conflict. The other is that the President may, by special action, authorize such an operation. The operation that Hersh describes almost certainly would have required a presidential finding which concluded that it was in the nation’s national security interest, and authorized the operation to go forward. Hersh suggests that the entire process was delegated to the Vice President, however, which may have required a more extensive modification of E.O. 12333. President Bush issued a complete revamping of EO 12333 on July 30, 2008—and he directed that the details of his revision be withheld from the public. The publicly disclosed text of Bush’s action in 2008 focus on a structural reorganization, bolstering the authority of the intelligence czar, largely at the expense of the director of central intelligence. There has been continuous speculation that Bush also made changes in the operational guidelines on this occasion, or perhaps in an earlier secret order or finding.

Of course, both these discussions assume Executive Orders mean what they say.

But we know they don’t, necessarily. We know that the OLC told George Bush (almost certainly back in 2001 when he was first inventing excuses for his warrantless wiretap program) that:

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

In fact, we have reason to believe that EO 12333–the EO that prohibits assassinations–is the EO that Bush and OLC had in mind when they first invented pixie dust (the practice of changing EOs without making any public record of the change). Here’s what Sheldon Whitehouse said when he first exposed Bush’s practice of pixie dust:

Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." And he doesn’t have to change the executive order, or give notice that he’s violating it, because by "depart(ing) from the executive order," the President "has instead modified or waived it."

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.

Though Whitehouse didn’t say as much when he first exposed Bush’s pixie dust in 2006, he strongly suggested that Bush had pixie dusted away the limitations on wiretapping Americans contained in EO 12333.

Now, that doesn’t mean that Bush also pixie dusted the prohibitions on assassinations–"modified" the EO without telling us.

But it also means there is no reason we should point to EO 12333 as if it means what it says–particularly not with the Bush Administration’s well-publicized practice of taking out alleged members of Al Qaeda with predator drone strikes for years.

It’s all very nice that every President since Ford has upheld the prohibition on assassination in EO 12333. But in the era of pixie dust, that doesn’t mean Bush also upheld it, even if it looks like he did.

A reader sent this link, reporting that the Obama Administration refuses to release under FOIA a number of documents pertaining to an intellectual property treaty negotiated under Bush.

Last September, the Bush administration defended the unusual secrecy over an anti-counterfeiting treaty being negotiated by the U.S. government, which some liberal groups worry could criminalize some peer-to-peer file sharing that infringes copyrights.

Now President Obama’s White House has tightened the cloak of government secrecy still further, saying in a letter this week that a discussion draft of the Anti-Counterfeiting Trade Agreement and related materials are "classified in the interest of national security pursuant to Executive Order 12958."

[snip]

Jamie Love, director of the nonprofit group Knowledge Ecology International, filed the Freedom of Information Act request that resulted in this week’s denial from the White House. The denial letter (PDF) was sent to Love on Tuesday by Carmen Suro-Bredie, chief FOIA officer in the White House’s Office of the U.S. Trade Representative.

Love had written in his original request on January 31–submitted soon after Obama’s inauguration–that the documents "are being widely circulated to corporate lobbyists in Europe, Japan, and the U.S. There is no reason for them to be secret from the American public."

[snip]

Love’s group believes that the U.S. and Japan want the treaty to say that willful trademark and copyright infringement on a commercial scale must be subject to criminal sanctions, including infringement that has "no direct or indirect motivation of financial gain." 

Frankly, I don’t know why Obama is keeping this secret. He doesn’t want Americans to realize that our largest export–Intellectual Property–is as vulnerable in some ways as the housing market? He doesn’t wants us to know that he’s maintaining, on an international level, policies which violate his claim to be net friendly on the national level? He doesn’t want us to know the technology they’re advocating for pursuing peer-to-peer software? Maybe the discussions the parties to the treaty had touched on some or all of this…

Or maybe he just want us to know what tunes Osama bin Laden has on his iPod? 

Update, from WO in comments:

I found the leaked draft on wikileaks. I suspect the reason for the secrecy is this line that I don’t think anybody has noticed:

Civil enforcement:
— Authority to order ex parte searches and other preliminary measures;

Ex parte searches? For digital materials? Sounds like the NSA’s dream come true.

When I suggested the other day that Obama’s memo on signing statements was actually very troublesome–in that there’s no transparency for which of Bush’s signing statements Obama plans to keep and in that we never learn which of those Bush relied on to break the law–a few people suggested I was being cynical. Really, the most common interpretation of the memo went, the memo was a sign of change we can believe in, a new willingness to be bound by law.

As it turns out, the memo appears to have been released (almost two months into Obama’s term, after all) to lay the groundwork for Obama’s first signing statement.

Charlie Savage (who wrote the book on this stuff) lays out the contents–mostly statements saying Obama refuses to spend money with the oversight from Congress they’ve demanded.  

One of the budget bill’s provisions that Mr. Obama said he could circumvent concerns United Nations peacekeeping missions. It says money may not be spent on any such mission if it entails putting United States troops under a foreign commander, unless Mr. Obama’s military advisers so recommend.

“This provision,” Mr. Obama wrote, “raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as commander in chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority.”

[snip]

But a majority of the challenged provisions are those allowing money to be reallocated to a different program only with the approval of a Congressional committee. Mr. Obama called the provisions “impermissible forms of legislative aggrandizement” and declared that while executive-branch officials would notify lawmakers of any reallocation, “spending decisions shall not be treated as dependent on the approval of Congressional committees.”

So much for power of the purse.

The provision I’m most worried about, however, is one on whistleblowers. You see, the President who has promised transparency, apparently doesn’t want transparency to Congress when an executive agency fucks up.

He also raised concerns about a section that establishes whistle-blower protections for federal employees who give information to Congress.

“I do not interpret this provision,” he wrote, “to detract from my authority to direct the heads of executive departments to supervise, control and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

This strikes at the heart of efforts to fix some of our intelligence failures and abuses by making it possible for Congress to learn about them before it’s too late.

I guess all that transparency Obama talked about was only for the things he wanted us to learn about. 

Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
3. Yoo drafts a memo authorizing that program
4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
6. Yoo finalizes draft and sends it to Addington
7. Addington corrects it with a big red pen
8. Yoo makes Addington’s final changes and distributes memo to about 3 people
9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

3. OLC’s obligation to counsel compliance with the law, and the insufficiency of the advocacy model, pertain with special force in circumstances where OLC’s advice is unlikely to be subject to review by the courts.

4. OLC’s legal analyses, and its processes for reaching legal determinations, should not simply mirror those of the federal courts, but also should reflect the institutional traditions and competencies of the executive branch as well as the views of the President who currently holds office.

5. OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the President). On the very rare occasion when the executive branch—usually on the advice of OLC—declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification.

6. OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.

7. OLC should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.

8. Whenever time and circumstances permit, OLC should seek the views of all affected agencies and components of the Department of Justice before rendering final advice.

9. OLC should strive to maintain good working relationships with its client agencies, and especially the White House Counsel’s Office, to help ensure that OLC is consulted, before the fact, regarding any and all substantial executive branch action of questionable legality.

10. OLC should be clear whenever it intends its advice to fall outside of OLC’s typical role as the source of legal determinations that are binding within the executive branch.

In short, regardless of whether Jeff Sessions plans to accuse Johnsen of eating babies, she still intends to follow the law at OLC, rather than be a handmaiden of abuse of power like John Yoo was.

If you’re lucky enough to have any of the following SJC Republicans as your Senator, call him and remind them of the difference:

Arlen Specter, (202) 224-4254

Orrin Hatch, (202) 224-5251

Chuck Grassley, (202) 224-3744

John Kyl, (202) 224-4521

Jeff Sessions, (202) 224-4124

Lindsey Graham, (202) 224-5972

John Cornyn, (202) 224-2934

Tom Coburn, (202) 224-5754

I’m not so much surprised by the news, from yesterday, that the consultant brokering a deal between the Tribune Company and Rod Blagojevich spoke with Blago’s Chief of Staff John Harris the day before the FBI arrested Blago to stop a "political corruption crime spree."

[Consultant Marc] Ganis also noted the Cubs were not part of the firm’s bankruptcy filing and said, "Nils [Larsen] is going to call you and Sam [Zell] is going to call the Gov."

Nor am I surprised by the news that Sam Zell chatted with Fitz and friends under subpoena, or that he spoke with Blago the day before he was arrested.

Tribune Co. Chairman Sam Zell hired well-known defense lawyer Anton Valukas and was interviewed in January by federal prosecutors as a "potential witness" in the criminal investigation of former Illinois Gov. Rod R. Blagojevich, the company acknowledged Wednesday.

[snip]

In their subpoena to Tribune Co., federal authorities sought information about potential staff cuts or changes to the newspaper’s editorial board. The company has said Tribune Co. executives did nothing inappropriate.

Tribune Co. also acknowledged state records, recently obtained by the Chicago Tribune, that show Zell making a phone call and giving a gift to Blagojevich.

According to records of Blagojevich’s telephone logs, Zell placed a call to the governor Dec. 8, the day before the arrest. Zell placed "courtesy calls" to several elected officials, including Mayor Richard M. Daley, that day to notify them that the company had just filed for bankruptcy protection, according to the statement from Liebentritt. "Mr. Zell’s call to Mr. Blagojevich was not returned," the statement said.

Records also show that Zell gave Blagojevich a gift during 2008. The Liebentritt statement described the gift as a music box "or other specially created work of art."

The statement noted that for more than 30 years Zell has given such gifts to "local, national and world leaders . . . designed to share Mr. Zell’s vision for the coming year for the investment climate and the economy."

I’m most intrigued by the timing of it.

Zell spoke to proscutors in January. But we’re just learning about it now, in mid-March. And we’re learning about it from official sources at the Trib, not via less official sources.

You see, Fitz got a 90-day extension to the time when he needs to indict Blago, from January 7 to April 7. Which means anyone who wants to pre-empt news appearing in the indictment has less than a month to do so.

How handy for Zell that some of the media properties he bankrupted are still functioning well enough to allow him to do so.