Unemployed Bush Lawyers and the OPR Report

Let’s do some math.

First, the NYT reports that, like Alberto Gonzales, David Addington is also facing some career challenges. 

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

Next, Scott Horton reports on the upcoming OPR report detailing John Yoo and Steven Bradbury’s unethical conduct in craft OLC memos to justify torture. The report, apparently, focuses on contacts between the White House and OLC.

Sources at the department who have examined [the OPR] report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture. [my emphasis]

Earlier reports had mentioned some surprise among observers that investigators had included the contents of emails, which makes me wonder whether the White House’s so-far success at eliminating emails from other periods–like September-October 2003–when they were breaking the law didn’t extend as far back as 2001 and 2002.That is, I wonder whether the surprise had as much to do with the fact that OPR managed to get emails between the White House and Yoo, as with the emails themselves.

Now, right off the bat, I can think of some dates that might make this more interesting. The warrantless wiretap program started in early October. But they were still writing new memos to authorize it (and eliminate the Fourth Amendment) for several months after the fact (though the OPR investigation into wiretapping is separate). They started torturing Abu Zubaydah before August 1, 2002, when Yoo’s first memos came out on it (I suspect the third still-classified memo may retroactively approve the earlier torture). And DOD started the torture regime before authorization for that went up the chain of command.

There are already a few memos where we know the illegal program started, only to be followed by a Yoo memo authorizing that program (there’s an August 1, 2002 one that I suspect may retroactively Read more

They Picked a Bad Week to Stop Sniffing Glue

The Obama Administration got stuck with a bad court date to have to try to convince a Judge the Jose Padilla suit against John Yoo should be dismissed. After all, we knew Yoo’s memos were legally indefensible. But with the release of nine new OLC memos–including the memo eviscerating the Fourth Amendment, the two withdrawing that one and others, and, significantly, one of the memos pertaining to Padilla specifically ("authorizing" his military detention), the sheer cravenness of Yoo’s legal work is in sharp relief this week.

Nevertheless, they did argue Judge White should dismiss the suit. Though it sounds like he wasn’t impressed with their argument. 

The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla’s lawyers thoroughly, but he appeared to be skeptical of elements of the government’s argument.

And he referred to the 4th Amendment Evisceration memo specifically.

In fact, Judge White, who was appointed by President George W. Bush, even told the government’s lawyers that Mr. Yoo’s 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was “a pretty scary position.”

And there’s a further problem with the Administration’s position. They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.

But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said. 

Which suggests that the Administration thinks its puny OPR investigation against Yoo is an appropriate response.

The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture. And yet based on that, they want the Courts to butt out.

One more point. It appears that the Administration has not yet turned all the memos used to justfy Padilla’s treatment over (or at least not made them public). 

Earlier last week, the Obama administration released nine "war on terror" memos — some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee — shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn’t release all of the memos referenced in Padilla’s complaint, Read more

The Secret State Continues to Crumble

In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.

As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case. 

Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.

Spanking Spak and Spec

Arlen "Scottish Haggis" Specter–whose political obituary was written yesterday in the form of a dismal poll result and a renewed threat from Pat Toomeysays we don’t need a truth commission because all the details on Bush era crimes are contained in some file cabinets that we need only waltz up to and empty out.

And in case you were wondering, Lee Harvey Oswald acted alone.

Presumably because he believes we need only waltz up to those file cabinets and take out the Cheney indictment, the sole contribution Scottish Haggis made in today’s Truth Commission Hearing was to enter this Hans von Spakovsky column into the record. Given that Hans von Spak accused Leahy of pitching a House Un-American Activities Commission, I can only interpret Haggis’ action as a profoundly cowardly attempt to get back in the good graces of the Club for Growth. 

The column itself shows the depths to which the Heritage Foundation has stooped in these, the declining years of the Conservative Movement. Even setting aside the horrible optics of having someone under investigation for abridging minority civil rights for political gain squawking about "political prosecutions," the column is just of pathetically bad quality.

Hans von Spak begins by exactly repeating (the Heritage Foundation, defender of private property, apparently doesn’t even require original work anymore) an error the WSJ made in January, claiming that nothing resulted from Carl Levin’s 18 month investigation into torture in DOD.

Moreover, Sen. Carl Levin (D-Mich.) held hearings, under oath, over a 2½- year period looking into many of the same issues. His report, though predictably partisan, found no criminal violations.

Aside from this apparent inability to even count (18? 30? no difference to today’s conservative), Hans von Spak apparently believes that the Committee’s findings–that Bush’s dismissal of Article Three and Rummy’s approval of aggressive technique were the "direct cause of detainee abuse" in Gitmo–doesn’t amount to a criminal violation.

And of course, Hans von Spak, like the WSJ, basically endorsed Levin’s approach while ignoring his call for "an outside commission appointed to take this out of politics, that … would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA." Hans von Spak and WSJ try to fight the idea of a Truth Commission by pointing to the good work of someone effectively supporting a Truth Commission.

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Sheldon Whitehouse Destroys David Rivkin’s “Gallery of Horribles”

As I liveblogged here, the Republican response to Pat Leahy’s proposal to have a Truth Commission on Bush era crimes is to establish a set of straw men and then shoot them down, without ever addressing the problem that a number of high level Administration officials broke the law.

This exchange between Sheldon Whitehouse and designated Republican shill David Rivkin gets to the key aspects of tactic. Rivkin repeatedly introduced his own assumptions into what the Commission would do, all so he point to the constitutional challenges that only his imagined committee would have. And repeatedly during the hearing, Rivkin claimed the whole point of the commission was to select 12 to 13 high level officials and lay out the evidence of their criminal culpability.

I’m curious, though. If Rivkin has such an exact number of Bush Administration officials who broke the law, why hasn’t he called them out himself as prosecution targets? Or has he simply put his Republican affiliation before our Constitution? 

And isn’t it charming that Rivkin is so concerned about the civil liberties of those who in 37 pages claimed to eliminate both the First and Fourth Amendment?

Here’s my liveblogged transcript (with all the errors that implies):

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

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Senate Judiciary Hearing on Truth Commission Liveblog

Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas-Pickering-140_23908t.jpgThomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

gunn.jpgVice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

Farmer.jpgJohn J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

schwarz.jpgFrederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

Photo_06c45eaa5e2d481dbf2a4cf3513a6.jpgDavid B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

rabkin.jpgJeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

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Where Are the Other Memos?

As we’ve been discussing, DOJ released nine previously unreleased OLC memos yesterday, two of which were Steven Bradbury memos basically saying, "oops, no harm no foul!!"

But they’ve still just released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury’s two "no harm no foul" opinions). Where are the other memos? Why weren’t they released yesterday? Is it because they’re still active (and supporting torture and illegal wiretapping and whatnot??)

The question is especially pertinent given a few things Bradbury said in his January 15, 2008 "no harm no foul" opinion.

The Commander in Chief Is Only Sort Of Bound By the Law

To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.

The federal prohibition on torture … is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President’s Commander in Chief authority.


The President, like all officers of the Government, is not above the law. 

He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says, 

We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.

To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.

To the file earlier this year: … unless "applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II."


We Remain Noncommittal about the President’s Authority to Suspend Treaties

And then, in his discussion about whether or not the President is above the law, Bradbury cited a 2007 OLC memo (which we didn’t get yesterday), to say that OLC had not yet weighed in on whether the President can suspend treaties.

The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from Congress, the text, or background law. The White House did not directly ask that question … and we did not purport to resolve it.

The Loopholes Remaining and the Outstanding Memos

Now, I consider these Bradbury comments very troubling given the memos that DOJ did not turn over.

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Breaking: Previously Unreleased OLC Opinions Now Released

A bunch of DOD-related OLC opinions just got released (h/t Spencer)

Of note, the one eviscerating the 4th Amendment has been released, and a key one on FISA that I believe Steven Bradbury didn’t include in his FOIA response on opinions relating to FISA.

Consider this a working thread.

January 15, 2009: Steven Bradbury attempts to partially roll back previous bogus claims

It appears that, just before Bush went out and Obama came in, Steven Bradbury attempted to partially roll back the most egregious opinions of the Bush Administration. Make no mistake, though. Much of this represents just a partial roll back. So rather than saying Bush had no business conducting his illegal wiretapping, Bradbury instead refers to the January 2006 DOJ White Paper which claimed (Tom Daschle’s objections notwithstanding) that the AUMF authorized illegal wiretapping. Similarly, while Bradbury admits that Congress has some authority to make law, that’s a limited admission. 

Who Watched the Torture Tapes?

As a number of you have pointed out, DOJ just informed the ACLU and Judge Alvin Hellerstein that CIA destroyed 92 tapes showing torture.

In the meantime, the CIA can now identify the number of videotapes that were destroyed, which is information implicated by [Hellerstein’s order that ACLU gets information responsive to its FOIA request]. Ninety-two videotapes were destroyed. 

Once McCaffrey the MilleniaLab and I go for a walk, I’m going to follow-up to see whether those 92 tapes all came from Abu Zubaydah and al-Nashiri’s torture (remember–original reports said there had been thousands of hours of videotape) or whether the torture tapes of different detainees were included.

Just as interesting (particularly in light of the goings on in the al-Haramain case), is the list of information that the ACLU will shortly be getting (the CIA wants this week to put together a schedule for turning over the information). That includes:

  • A copy of the CIA Office of Inspector General’s Special Review Report–a redacted copy of which had previously been supplied to the ACLU–with the details regarding the torture tapes un-redacted.
  • A list identifying and describing each of the destroyed records.
  • A list of any summaries or transcripts describing the destroyed records’ content.
  • Identification of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Note, they are warning that they will protect CIA identities wrt that last bullet. But we may get the names of other people (I’m curious whether Cheney, David Addington, or John Yoo might be among them) who had viewed the torture tapes.

And this is perhaps the most interesting bit:

The CIA intends to produce all of the information requested to the Court and to produce as much information as possible on the public record to the plaintiffs.

Watch out below, because I think this dam may well break.

DiFi’s Whitewash

Last week, when I put you all to work (while I was on vacation–sorry) to find out whether your members of Congress supported some kind of investigation into Bush Administration crimes, fatster reported back DiFi’s ambivalence about any such investigation.

According to the Washington staffer who answered my call just now, DIFI has not yet commented on what her position will be. Imagine that.

DiFi’s support or not is critically important since–as the new Chair of the Senate Intelligence Committee–she’ll have significant say about whether or not we investigate what the Intelligence Community did under Bush.

Well, today the largest paper in DiFi’s state reports what appears to be DiFi’s slowly evolving response: an investigation that the American people don’t get to see. Otherwise known as a whitewash.

The Senate Intelligence Committee is preparing to launch an investigation of the CIA’s detention and interrogation programs under President George W. Bush, setting the stage for a sweeping examination of some of most secretive and controversial operations in recent agency history.

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed — including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public.


The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public.


Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Read more