Conyers to Yoo: If You’ll Talk to Esquire, Come Talk to Me

Conyers isn’t quite as reliable as Henry Waxman in calling a hearing approximately 5 work hours after a big scandal. But is reliable in actually calling the hearing (which means Rove should get his invite in about a day and a half):

I write to invite you to appear before the Committee on the Judiciary at our May 6 hearing scheduled to explore issues regarding the nature and scope of Presidential power in time of war and the current Administration’s approach to these questions under U.S. and international law. Among the subjects likely to be explored at the hearing are United States policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces, matters addressed in some detail in opinions that you authored during your service as Deputy Assistant Attorney General in the Office of Legal Counsel. Given your personal knowledge of key historical facts, as well as your academic expertise, your testimony would be invaluable to the Committee on these subjects.

I understand that, in discussions with my staff, you have expressed reluctance to testify voluntarily on such matters. I am hopeful that you have reconsidered that stance, however, given your extensive public comments on these very issues. For example, on April 3, 2008, Esquire magazine published an interview in which you made frank and on-the-record comments regarding the origination, drafting, and scope of OLC interrogation memoranda. Similarly, you provided on-the-record comments on the recently released March 2003 interrogation memorandum to the Washington Post just last week, describing that document as “near boilerplate” and asserting that, in pulling back from the analysis in that memorandum, the Department had “ignored [its] long tradition in defending the President’s authority in wartime.” Overall, you have made such extensive public comments on these and related matters, that it is extremely difficult to understand why you would continue to decline to present your views to the Committee.

To the extent you have raised concerns with my staff that some questions on these matters might call for responses that you believe would be covered by executive privilege or that would implicate executive confidentiality interests, I am confident such concerns can be effectively managed in a setting where you are voluntarily appearing before the Committee. Read more

Torquemadas in Single Needle Suits

Since I lauded Colonel Pat Lang the other day, and since I fear he interpreted my comment that "Lang’s acerbic commentary lacks all of [Dana] Priest’s balance and moderation" as a critique, I feel duty-bound to link to his post today, riffing on the WaPo timeline describing the Administration’s evolving stance toward torture and the Constitution.

I thought that I had known some tough, ruthless "customers" over the decades, but now I see that they were mostly "wusses."  All those Special Forces soldiers and intelligence people, they just did not "measure up" as tough guys compared to Washington lawyers like the ones cited in this article.

Modern day "Torquemadas" in single needle suits and hand made English shoes.

One must wonder if was mere ambition or a convicion of the rectitude of illegal search and seizure inflicted on American citizens that apealed to these lawyers more in writing these papers.

I suspect that it was ambition.

To make all this even more bitter, the plan clearly was to use American soldiers to do much of this.  (Irony Alert) How grand an idea! In this in way American soldiers could be trained to think that such behavior is appropriate.

Nope. "Lacking all of Dana Priest’s balance and moderation" was definitely not intended as a critique. 

Was the October 23, 2001 OLC Opinion the Basis for the Illegal Wiretap Program?

By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.

[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.

The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.

Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.

The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,

OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.

I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).

The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.

Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).

The NSA is part of the military .

The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”

But the proposition for which that memo is cited* in footnote 10 of the memo is:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

So, what does this mean? Depends on how you define “domestic military operations”, don’t it?

I argue the 10/23/01 memo was the lawyerly justification for:

(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).

All of those things are military operations. 

The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

Read more

The “John Yoo, Let’s Pretend We’re Lawyers” Game

Here’s a fun little game you bloggers can try at home. It’s called the "John Yoo, Let’s Pretend We’re Lawyers" game.

  1. Take an 81-page opinion dealing with the degree to which the President’s power is bound (or not) by existing laws during war time
  2. Open both parts of that opinion in your PDF reader (Part One, Part Two)
  3. Using the search function on your PDF reader, search for the word "Youngstown"
  4. Guess how many citations to Youngstown you find–go on, guess!

Peterr helpfully suggests via email, "Maybe it was redacted for national security reasons."

And in case you were worried that Yoo simply doesn’t know about Youngstown, see this link (also courtesy of Peterr), that demonstrates that Professor Yoo believes it is the first text to consider in any discussion of separation of powers.

Acting Counsels and Torture

Marty Lederman links to the finally declassified March 2003 memo authorizing torture in the military (Part One, Part Two). He reminds us the significance of the memo:

As I’ve discussed previously — see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" — it "seemed more an exercise of sheer power than reasoned analysis" — and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)

But I’m even more interested in this part of Marty’s post:

On Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day — a Saturday — John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees.

It describes how, as soon as the established top lawyer for one part of the executive branch left, his replacement took responsibility for a significant legal act. I find it ironic, particularly given the stamp that appears on the first page of the first part of the memo:

Declassify under authority of Executive Order 1958
By Acting General Counsel, Department of Defense,
By Daniel J. Dell’Orto
31 March 2008

Dell’Orto, you’ll remember, replaced William Haynes at some point last month. I’m not precisely sure when Haynes’ last day was–but within weeks of taking over as Acting General Counsel at DOD, Dell’Orto declassified an opinion we’ve been trying to declassify for years. Read more

Not Even John Yoo Approved of the Illegal Wiretap Program

I do hope that Eric Lichtblau’s book gets enough coverage this week to further stall Jello Jay’s attempts to ram through telecom immunity. The excerpt in the NYT today reveals that when the illegal wiretap program started in 2001, it had no specific legal authorization–not even from the compliant John Yoo!

Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

Read more

John Yoo complains, “I am trapped on a plane in all of this bad weather”

Poor John Yoo. Apparently now he’s trapped. Or, as his lawyer said, faced with "nothing more than a political rant disguised as a lawsuit." I know you’re all crying for him.

I’m a little bit late to posting about the law suit, on the behalf of Jose Padilla and his mother, against the guy who rationalized his torture, John Yoo. But that makes my punditry job easier–I can just borrow liberally from all the smart lawyers who have been debating the suit in this thread.

Though I’m not a lawyer, I agree with bmaz’s take that the suit is fairly weak.

First off, as despicable as Yoo is, I am not sure he is a proper party defendant here. Secondly, I think his actions are probably entitled to qualified immunity. Third, I see a real problem establishing direct causation for Padilla’s damage elements. Fourth, despite the allegations in the complaint, I am not sure that NDCA is the proper venue. fifth, it is just not particularly artfully plead. Read more