Login HereI'm kind of glad that I put off posting on the Administration's waiver of environmental laws so it can put up its pathetic little wall on the border with Mexico.
In a sweeping use of its authority, the Department of Homeland Security said Tuesday that it would bypass environmental reviews to speed construction of fencing along the Mexican border.
Michael Chertoff, the homeland security secretary, issued two waivers covering 470 miles of the border from California to Texas well as a separate 22-mile stretch in Hidalgo County, Tex., where the department plans to build fencing up to 18 feet high into a flood-control levee in a wildlife refuge.
“Criminal activity at the border does not stop for endless debate or protracted litigation,” Mr. Chertoff said in a statement.
The announcement angered environmental groups, which have raised concerns through lawsuits and public hearings about the damage that fencing could cause to wildlife. Property owners, particularly along the Rio Grande, have also objected to what they considered federal intrusion on their land and access to the river.
That's because Marty Lederman, in the first of a series on the Torture Memo, noticed something no one has yet noticed in the memo.
From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief's prerogatives.
The memo's application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I'll discuss in further posts. And this section is the heart of the Opinion -- the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.
Here's the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."
In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.
The head of the Criminal Division at the time was Michael Chertoff (now Secretary of Homeland Security). Nine days before the memo was issued, President Bush nominated Chertoff, like Bybee, to be a federal judge on a U.S. Court of Appeals. [emphasis Marty's]
In other words, Lederman believes that Chertoff gave John Yoo (who, as Marty notes, was seemingly working without the authority of the Assistant Attorney General in charge of OLC), the approval to say that a bunch of criminal laws--including those prohibiting torture--do not apply to those conducting war. Lederman suggests that Chertoff shares responsibility for the bastardization of the rule of law that is the Torture Memo.
In almost precisely the same time period, you will recall, Chertoff was allegedly telling well-connected Republican banana companies that it didn't matter if they continued to support right wing terrorists, so long as they helped supply intelligence on the terrorists.
Marty's tidbit puts Chertoff's massive exemption for the goddamned wall in a different light, doesn't it? First the terrorist supporting banana company. And then his goddamned wall. And, as it turns out, Chertoff appears to have been involved in waiving torture laws.
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Oh, good. Thank you, EW, for painting a nice big target on Chertoff’s back. Now if only the Democrats in Congress cared enough about the Constitution to haul his ass before a hearing and ask him what the heck was he thinking?
Bob in HI
The debate might be less endless and the litigation less protracted if guys like Chertoff had more respect for the existing laws and regulations, as well as how their wonderful [snark] plans will affect Joe Average.
Chertoff should be up for impeachment, too.
The title of last Saturday’s episode of NPR’s “This American Life” was “The Audacity of Government.” One segment of the show dealt not with the US/Mexico border, but the US/Canada border. Since 1908, a joint US/Canadian commission has dealt with boundary issues, but now the Bush Administration is trying to quietly repudiate or remake the whole deal.
Here’s how they describe the opening of the show at the TAL website:
Rule of law means nothing to Chertoff nor his boss in the room with no corners.
Maybe related, maybe OT, but now that we have this document released, are there any rumblings about the release of the CIA techniques authorization memo? Forthcoming?
btw - there ought to be some paperwork involving that Crim Div concurrence. Wonder who researched and penned?
This memo was released pursuant to the ACLU’s FOIA to DOD (it was released in the same batch as the DOD NSL documents, I guess). So if we want to use this release to leverage other releases (which might have to come from Congress, since CIA has already responded to the equivalent of the same FOIA–it’s in that FOIA request that CIA may have violated orders to save documents), we’d need to make this enough of a scandal to force the govt to yield.
is this enough to impeach?
I heard this NPR show, too, and Glass had more to say about this “lawyering style.” Part of it was the basic offensive philosophy that if you go for everything, you might get something, but if you only go for something in the first place, you might wind up with nothing. The whole broadcast merits a listen just for this insight into their playbook.
We can see this played out in the WH FISA gambit, where they were swinging for the fences with no thought of compromise, and after hitting a home run in the Senate, struck out in the House. Now they’re talking “compromise,” but count the silverware, folks, because we know what they mean when they say “compromise.”
Bob in HI
And soon, environmentalists in opposition to unlawful walls on the border will be called terrorist-sympathizers or worse. A few may find they are tortured, or at least have trouble boarding airplanes.
When lawful means of checking these maniacs in office fail (e.g. impeachment), what is left?
Last I checked we had 10 Amendments in the Bill of Rights. Odd ones go on the left, like forks, even go on the right, just under the drinking glass.
That what you’ve got?
Claiming to speak for the OLC, which Yoo did by issuing this memo, without having the authority to do so is unbelievable. (OK, this is BushCo. It’s believable. But still . . .) It also must be — surely it must be! — illegal.
How in the world does Yoo get away with issuing a memo he had no authority to issue? The fact that no one questioned it at DOD says to me that the fix was in.
Don’t forget that Steven Bradbury is effectively doing the same, when he continues to act as Acting head of OLC even though, according to at least some understanding of the Vacancy Reform Act, he cannot continue to serve in this position.
And it was under that authority, for example, that he wrote an opinion saying Miers and Bolten (or maybe it was Rove) didn’t have to testify.
And if no one on Capitol Hill is going to exercise any oversight, why should the folks at OLC or anywhere else at DOJ care?
The Rubber Stamp Republican Congress did a lot more damage than most folks realize. Enabling this kind of behavior through their inaction will have ripple effects that last for a generation.
I have the same issues with Bradbury, but, arguably, he is in different standing since he is at least theoretically acting head. Yoo was not to the best of my understanding. In a way, I kind of agree with Peterr that it is questionable for it to have gone out under Yoo.
Secondly, WTF is up with YooTuber citing Chertoff in the first place? What SkeletorCryptkeeper had to say was of no moment whatsoever. Might as well cite the concurrence of Barney the Bush mutt. Actually Barney might be smart enough not to sign on to that pile of crap.
I said this somewhere else earlier, but I’ll repeat it here. So, now that we (and I presume the Congresscritters if they can get their hands out of the deep pockets they are continuously plumbing for campaign cash) have seen the beyond bogus reasoning in, and classification of, the torture memos, how can Congress go one inch further on the FISA bill without complete disclosure of all OLC, and any other, legal opinions underpinning the surveillance program? You know the quality of legal reasoning in them isn’t going to be any better than the pure unadulterated crap from Yoo that has been dissected for the last 24 hours. Congress needs to stop cold in it’s tracks and demand those opinions to so be made public. Immediately. I almost wonder if the torture crap isn’t cover for a cave on FISA.
Peterr, thanks very much for that link, which I will watch tomorrow. (I’m toddling off to sleep soon.) From what we know up here, though, and without having seen the segment, I would modify this statement a bit:
It’s true that “the whole deal” and a lot of other whole deals are being “remade” by executive fiat (they call them “administrative agreements”), but our “executive” (sheesh: we’ve never had to use that term before) is every bit as involved as yours, I fear.
I wish I could say that you big guys are bullying us little guys into things, but the truth is that our current dear leaders are all too eager to “harmonize” with Washington however they can, and the border above all they care about. To keep the trucks rolling over the Ambassador Bridge, our current PM will agree happily with Bush about just about anything (and has), and even if we replace him with a slightly more civilized Liberal, that statement will hold.
Our elites have given up. The strongest organizing voice for the SPP (Security and Prosperity Partnership, officially acknowledged in all three of the U.S., Mexico, and Canada, although I’ll bet you hear almost nothing about it, and that’s because it’s the executives’ way of arranging things “administratively” without running them past Congress or Parliament) is a Canadian Liberal, John Manley, who (not entirely coincidentally, methinks) just led a panel up here arguing us into staying into Afghanistan for as long as … well, as long as Bush (or whomever) wants us there. It’s like that.
Oh, dear. That “whomever” should just be “whoever.” Forgive the pedantry, not to mention the self-consciousness, but I’m supposed to be an editor. Eeps.
What is the possibility that he is the “in the gate” threat? I recall reading that he may have dual citizenship but will not confirm his mother’s citizenship history.
Anyone know?
Chertoff DHS confirmatin transcript:
http://www.democracynow.org/20.....02_torture
From link above.
SEN. CARL LEVIN: Now, let’s go back in time. Did you object to the definition in the memo in 2002?
MICHAEL CHERTOFF: As I said, because I don’t remember the way it was specifically worded, I can tell you that my role in dealing with the memo was limited to this: I was asked to communicate what my views were as a kind of practical prosecutor about how a statute like the torture statute would be applied. And my essential position—again, this is talking to other lawyers, so it’s really lawyer to lawyer kind of discussion—was that when you are dealing with a statute with a general standard and an intent issue, the question of good faith and an honest and reasonable assessment of what are you doing becomes critical, and whether or not a particular type of thing that someone proposes to do violates the statute is going to depend, or whether a prosecutor views it as a violation of the statute, is going to depend a great deal upon whether the particular technique is specifically mentioned in the statute, or if it’s not, whether the people who are thinking about doing it are making an honest assessment about whether what they’re going to do rises to the level of the statute. I guess my bottom line advice was this: you are dealing in an area where there’s potential criminal liability, you had better be very careful to make sure that whatever it is you decide to do falls well within the—what is required by the law.
Well, I’m worried about the missing steak knife.
Bob in HI
So who is
lyingblatantly misrepresenting what occurred? Because one of them is.Chertoff’s petition for writ of certiorari standoff against Defenders of Wildlife and SierraClub regarding the fence boondoggle; who sent these fencebuilders on this junket? just filed. Chertoff is using the same spate of illicitudes as justification for the fence as he is in his hortatorical denials that 10,000,000 increase in decibels from medium range sonor does not damage life behaviors of several hundred thousand sea mamals and fish in the sonar case. Looks like this year is the profiteer clear the boards for the folks still in office. DW has refurbished this nice tutorial on the marine life affected [2MB], which Chertoff says is nonScience. I suspect the executive Office of Science and Technology Policy missing emails [caveat 20MB filesize, full Waxman grid for all departments] are part of the strategizing for this antiscience administration. The fence project has sections in TX, but also the San Pedro segment on the Sonoran plateau by the army intell school campus in Huachuca, and the Barry M.Goldwater aerial bombardment practice range around Gila Bend.
The extent of the lawlessness here is beginning to stun me and I’m a jaded old fart from way back.
I’m just stunned.
With this administration, I suggest looking in someone’s back.
Heh, you know, Barry was an active pilot until not long before his death. He was certified on about every kind of bomber in the Air Force fleet, including the B-1 Bomber and I truly believe he might have bombed the wall himself if he was alive.
U.S. banana companies and U.S. intelligence agencies and operatives have quite a history.
http://members.tripod.com/grou.....Guate.html
http://books.google.com/books?.....n#PPA95,M1
http://youtube.com/watch?v=EGI.....re=related
Chertoff is the guy who wants us to be required to hold national id cards, too, right?
He lost the election because he wanted to explode a 100 megaton H bomb in the atmosphere in NV, and the people said no way any more. A formal description of the range is there (wide angle map); it extends several hundred miles so the practice can be at actual combat speeds; they have trained Chinese pilots there, too. Check out this outfit that has GIS contracts for the military in archeological site preservation and location by prediction software. They did a presentation for the Buffalo Soldier plaza on fort last year.
“U.S. banana companies and U.S. intelligence agencies and operatives have quite a history.”
So, is that why our system of government is beginning to look a lot like a Banana Republic?
Bob in HI
I’m always suspecious of bush when he’s first against something and then suddenly for it. The difference it seems is that he is made aware how to rip off another sector of the population. He was against a senior drug plan until he was made aware of how insurance companies and pharmacuticals could make a killing off the elderly. He didn’t care about housing until suddenly US was to become an ‘ownership society’ enabling investment bank deals to increase the number of buyers then rip them off . He was against fences until he was made aware of the govt. dollars that would flow to friends. What made this come to mind is some reading I did a while back, where Carlyle wanted bush to walk softly on some issue with the Saudis because Baker was talking the Saudis into building a fence along the long border with Iraq. It was for a hugh amount of money to Carlyle and Baker didn’t want to lose the contract. So I would add a motive of rip-off to the jocking about fences on the border.
hmmmm, ’suspicious’ I think..
Who besides Derek Flynt picks a fight with the Canadians? Why? Europeans think of them as Americans with manners. Who besides Bush? He’ll pick a fight with the law, anytime, anywhere. He’ll pick a fight with anybody who upholds it, anybody who has anything he wants: timber, uranium, fresh water, neutrality, goodwill, or control over the once mythical, now meltingly real Northwest Passage.
Bush is a caricature of the bad guy in every western ever made. He hates him some marshalls and judges, he hates him some sheep herders and barb wire fencers, and he loves him some cattle, the bigger horned the better. And he wants all the water rights and grasslands he can beg, borrow or steal, don’t make no difference to him.
Turn around; it’s in your back. Fingerprints are a C-12 matter, though; can’t tell you whose they are.
As I mentioned in a comment here back in January, Chertoff’s involvement (via January 29, 2005 NYT article) was real, and perhaps even crucial:
And more from that 2005 NYT article:
Actually, with the number of people whose asses are in a sling, I’da thought that there would be a whole lot more back-stabbing by now, as the rats leave the sinking ship.
Or, do the rats know something that we don’t?
Bob in HI
14 and others -
So, don’t you think that contractor who was charged for assault and the like regarding the “detainee” who died in Afghanistan —- don’t you think he and his defense would be interested in the fact that the Crim Div of DOJ concurred that beatings and assaults and the like taking place out of the US and where the victim was not a US citizen, in the prosecution of the war on terror - are not covered by any criminal statutes?
http://www.iht.com/articles/ap.....-Abuse.php
6 - I really think if nothing else, now that this memo has been released someone needs to hammer the procedural point of the failure to designate person and grounds for classification bc that goes to the substantive point as well - that there was no applicable grounds - and maybe that would get a judge to at least require the memos be given to the court for ex parte review to see if they are in compliance with Exec Order requirements for them to be treated as classified. But maybe that’s a non-starter too for other reasons or maybe they’ve been down that path and failed already - it just seems to me the failure of this memo on its face to comply with classification requirments raises some issues that might not have been as clarified for the courts before. fwiw.
Per EFF - Administration Asserts No Fourth Amendment for Domestic Military Operations:
I wanna see that Yoo “opinion” too! EFF sees this as tied into the purported “legal” underpinnings for the warrantless surveillance program (in Administration gobbledy-gook, the TSP).
This is interesting (and, speaking of other memos)- from AP via TPM
emph added
So the whole of the telecom program originally operated under a non-program specific umbrella that the 4th amendment had no application to domestic military operations?!?!?!?!
Um, despite Milligan which says - - - the 4th amendment has application during domestic military operations?
whoa.
So Jerkoff is the same type of lawyer as the rest of those creeps Bush hired, not a huge surprise especially after watching ineptly he run his department. Can we say Katrina!?
Yep, and don’t forget to put this in the context of the recent revelation from Lichtblau:
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.
Did they not tell Mueller about that one?
“Or, do the rats know something that we don’t?”
I suspect that all of these idiots have a plan to escape somehow. Although, judging from reaction to the Yoo memo that was released yesterday, maybe some of them have suddenly realized that their world is not as large as it was…and maybe there is nowhere to run. Maybe it is just my imagination, but I feel the tide turning — and I also sense fear from these goombahs! Preznit Chimp’s faux pas today trying to abruptly end someone else’s press conference tells me that he is becoming very uncomfortable being in the limelight.
I keep hoping that Cheney will decide to make one of his midnight trips to wherever, and some brave soul who has the keys will yank his passport so he can’t come back (you know, just for shits and giggles!)…
Seriously, if I were an attorney (and I really thought about pursuing that profession at one time), I would be so angry with what this administration has done to undermine my profession that I would be looking for every means possible to hold each and every one of them liable. Lawsuits would be one way to go if the criminal statutes are not viable. For the future, though, I would not be surprised to hear that a defendant attempts to do what Bush has done: “It does not apply to me.”
Marty Lederman, in the part of his post just before EW’s excerpt begins, points out that it is the AAG for OLC, not the office of OLC, that is authorized to issue these opinions.
Yoo was not the AAG or acting AAG at the time this memo was signed and released by him. He had no authority to issue it. Its interpretations of US law were not valid or binding on the executive branch, though Haynes and others relied on it.
The memo was kept secret, making it impossible to determine that invalidity or to knowingly adopt or ratify its conclusions. It’s not clear that Ashcroft or Comey saw it until Goldsmith learned of it, reviewed it, and ran it up the flag pole for Comey to see how many holes were in it.
This looks a lot like the same pattern exposed in the Gonzales visit to Ashcroft’s hospital bedside. Making law and ”authorizing” behavior with a night stick.
You guys fast. I was just going to put that up. Interesting the period of “16 months” is used, but later in the article it indicates that the only real refutation of the position occurs in January of 2006. I again repeat my assertion from 14 above, not one freaking thing should be done on FISA/Immunity until every bit of this crap is out and in the open.
And The Earl too - I wonder if the “no formal legal opinion” is because Yoo’s spew was not legitimate as a “formal legal opinion”? To the best of my knowledge, Yoo was a deputy assistant attorney general in the OLC. I have seen him described as “the Number Two at OLC” but I have never seen anything that formally conferred any official status upon him, nor anything that would formally designate him an “acting” official status; therefore I think it is a decent question as to under what authority and status was he able to undersign any of these documents. Perhaps there is such a basis, but I have seen no substantive evidence of such.
Maddog wins the First. *g*
40 - I *think* my takeaway from that article was that there was no legal opinion endorsing “the program” early on, but there was a more generic legal opinion they were relying on, until a later demand for a more formal opinion.
But boy oh boy, whatever they were spinning, it’s not exactly on all fours to claim that an opinion that “concluded that the Fourth Amendment had no application to domestic military operations” is the same as a conclusion that the N.S.A. can “intercept international communication of terror suspects without a standard court warrant”
But I think that the Yoo opinion on the generic rights may have been all they had through the 2004 revisitation. Golly, no wonder the FISC was a bit “skeptical”
I am not a lawyer, but, “the sovereign”???? The Sovereign???
Gee, and I always thought “the people” were the sovereign in the US. Hmmm.
No no no. Mark, please, it is the Unitary
JackassExecutive!43 - I think the 16 mos are because they know the general “war kills the 4th amendment even at home” opinion is referenced as being written in Oct 2001, and that reference is in a March 2003 memo and they are doing the math from there. I think when you combine with what was in the 3-30 Lichtblau opinion, though, what you get is that people wanted “something” and Yoo gave them something in late 2001 or early 2002, so the “something” he gave is likely the Oct 2001 opinion.
But that “something” never really addressed “teh program” specifically, so it was revised in 2004 by Goldsmith (who probably was wondering a bit about overlooking the direct references to the 4th in the Milligan case) because it was “incomplete” and “somewhat shoddy, leaving out importatn case law on presidential powers.”
A military acting domestically under no constitutional constraints would structurally differ from the Komitet Gosudarstvennoi Bezopastnosti–how?
How many pardons can Bush fit on the head of a pin?
Separately, Yoo claims that no provisions of the criminal law apply to the military during “wartime” (declared or undeclared)? A soldier away from a combat zone (oh, wait, the world is our combat zone), can’t “murder” another one, or a prisoner, a Chicago taxi driver or foreign government official posing no immediate physical threat to anyone?
No wonder the JAG corps is so pissed off. A lot more people should be. If only Lawless John had been around for the Nuremberg trials, we’d need never have held them. Nor under John’s interpretation of the law, if applied in principal to their behavior, could we have convicted them. They were defending the Homeland from the terrorist threat posed by the worldwide Jewish conspiracy. [snark]
The ramifications of Yoo’s thought line - which he may have developed with a lot of help from Chertoff (and Addington?) - don’t seem to have been considered beyond their purpose in legalizing behavior Cheney had already determined he would authorize.
Marty does open the possibility that Ashcroft may have delegated to Yoo the authority to issue this opinion — though that would have been highly, highly irregular, to say the least.
Professor Lederman has just posted a correction stating that Bybee was still head of the OLC when this opinion was written.
48 - did I make sense on that math? They aer saying “at least 16 mos” because all they know is that in the March 03opinion he references the Oct 01 opinion as being in effect, so for that time frame (10/01 to 03/03) it was definitely in effect.
42 - the only thing is that the authority is delegable, so Bybee “might” have delegated that to Yoo, but if so, was even that delegation in effect since Bybee was technically gone on the Friday and the opinion didn’t go until Sat - was Whelan the only one with authority to delegate then?
Even more interestingly, Lederman says Whelan knew nothing about it - so does that mean he knew nothing about it UNTIL it went out, but then couldn’t call it back, or does that mean he knew nothing about it (and all the other little secret memos referenced in it) period - the whole time he was acting?
How can Congress even PRETEND there was good faith on the telecoms part if all they ever got was an opinion that said the military could ignore the 4th amendment domestically? (And doesn’t that put a different take, too, on the CIFA announcement?)
49 - different armbands?
I’d guess the latter.
The White House wanted this whole thing played very, very close to the vest, and I can see them saying “Until we get the new AAG/OLC in, let’s not ‘burden the temp’ with all this.”
Jeebus. I have goosebumps after reading that.
The Fourth Amendment was specifically written in response to British military actions against colonists, and based in English law that preceded it. How do they simply upend hundreds of years of precedent?
I guess you find some willing and evil morons who are illiterate about the law and its history, install them in high-level political office, and “make history”.
Interesting, but really only makes the question regarding Yoo even more significant in a way.
I found the hidden Youngstown Sheet reference:
Compare that with this description of Youngstown Sheet, which has become the accepted way to explain it:
So, what do I win?
52- ah, well, then the story will be that there was a delegation.
Really and truly - impeachment needs to start with OLC and that means reaching back to Bybee and in connection with review of his actions at OLC pulling him off the bench.
If Congress allows Bybee, Yoo and Bradbury to walk away with issuing secret laws (which in effect their opinions were) to the Executive Branch that allow the Executive Branch to disregard Congressional statutes with no consequence, they are throwing away the power of impeachment. If having an Executive branch underling stand up and pass out “ignore Congress and its laws” passes to the rest of the Executive branch doesn’t get impeachment - what does?
A failure to dig in and start impeachment hearings on Bradbury that brings in Yoo and Bybee for testimony (no Exec privilege there) and goes after Bybee’s judicial appointment - means Congress really is a dead institution.
55 - WO trumped us at 52.
58 - one of the new, improved armbands.
Yeah, well, the standard in every legal situation I have ever been in or seen is that any such designation or countersignature must be part of, or attached to, the document.
John Yoo is at his zenith when he’s making it up out of nothing on behalf of powermad no-nothings.
Which may explain a portion of the fearmongering they’ve done, like the strong arm tactics on NYT to halt the publication of the article on domestic spying.
They must insinuate that the enemy is here on our turf in order to claim the war is being conducted here, too; this bolsters the President’s power as CinC.
It also explains their fallback position of undermining Posse Comitatus, in the event they cannot continue to push the notion of war on our soil.
Excellent point. Odds are you’re right. The presidential determination could not have relied on an invalid opinion; that frailty would have been quickly obvious. The determination plugged the legal hole caused by the invalidity of Yoo’s opinion, while apparently adopting its conclusions and reading of the law. We’re into serious legal circle jerk territory; it’s like those Renaissance paintings of the impossibly continuous stairway.
Well, did the ACLU ask for the cover letter to be declassified?
/snark
masaccio–ask for the one with the white star. The ones with the red star are bad, but I can’t remember why anymore.
I can try to find the shiny hubcap trophy from football trash talk….
Here’s a place to start — the offices of the senators who voted against putting Bybee on the 9th Circuit bench in the first place:
Boxer (D-CA)
Byrd (D-WV)
Clinton (D-NY)
Corzine (D-NJ)
Dayton (D-MN)
Durbin (D-IL)
Feingold (D-WI)
Feinstein (D-CA)
Harkin (D-IA)
Inouye (D-HI)
Kennedy (D-MA)
Lautenberg (D-NJ)
Levin (D-MI)
Mikulski (D-MD)
Murray (D-WA)
Reed (D-RI)
Sarbanes (D-MD)
Stabenow (D-MI)
Wyden (D-OR)
There are several Judiciary committee names on that list.
Snark my ass; they would try that bunk in a heartbeat!
Any way you look at it, something irregular is going on. Generals and admirals don’t accept memos from anybody’s deputy assistant without someone else with more pull saying “listen to this guy.” Someone wrote a cover memo, saying “Yoo speaks for the OLC and AG on this.” The first question is who, and the second question is why.
At this point in the story, all eyes turn toward David Addington and Richard Cheney . . .
My WAG: Cheney and Addington go to Bush, demanding that the OLC give the “right” advice to the DOD, and further suggesting that Yoo knows all about this and can make it happen. Bush agrees, and makes it clear to Ashcroft that Yoo should do this. Ashcroft salutes, and tells Yoo to write it up and send it off.
. . . or instead someone of writing a cover memo, someone made a few phone calls.
Let’s see if the “usual suspects” are missing from that list.
Harry “Hit me again” Reid D-Nevada
Chuckles “The Clown” Schumer D-New York
Yup, so I guess the fix was in…again.
What won’t these folks put on the bench?
51 and 52, it’s not relevant who was AAG or acting AAG for the OLC, except that it wasn’t Yoo. It would be relevant if Ashcroft had authorized Yoo to issue this opinion. It seems more likely that Ashcroft, rather than authorizing him to issue particular work, would have simply authorized him as acting AAG for OLC. I think Marty wrote that he was unaware of any such delegation of authority.
Earlier narratives of the musical chairs played at OLC around this time suggest that Ashcroft wasn’t following them closely, making it less likely he would have delegated authority to Yoo. At some point, Ashcroft learned of suspicions that Yoo was a Cheney mole and not loyal to Ashcroft or the DOJ, one reason he adamantly opposed naming Yoo head of OLC. But that may have been later.
The torture memo is just full of good lines:
All over the blogosphere people have been saying that Bush can torture these people to get his jollies. And Yoo is his procurer.
Haynes. Because Cheney/Rumsfeld wanted him to and as Gen. Counsel for the Pentagon he could.
I think Ashcroft “claims” he was left out of a lot of the memos involving Yoo and OLC. But in any event, once Haynes had something from someone at OLC, and Yoo probably had valid delegation from Bybee (who was Haynes “joined at the hip” friend and who just got a nice shiney lifetime 9th circuit slot), then Haynes as the top legal gun for DoD could make them accept it. As a matter of fact, there is a lot of reporting, between the Mora story and later JAG armtwisting stories, about just how abusively he used his position as DoD Gen Counsel to make the military acquiesce in torture.
73 -
It’s relevant in that there has been for many years a standing delegation from the AG to the head of the OLC to issue these opinions on behalf of DOJ. So the head of the OLC has the authority without having to get anything more from the AG and, not only that, the head of the OLC can further delegate this ability to issue out opinions without his signature.
So the relevance was that Lederman thought Bybee was no longer acting head of OLC on the date the opinion was issued out and he knew that Whelan, who he thought WAS acting head, said he knew nothing about the opinion (so Whelan couldn’t have delegated to Yoo the authority to issue out the opinion since he knew nothing about the opinion).
However, since Lederman has found out that Bybee was still the head of OLC, then Bybee could (and probably will say he did and probably did for that matter) delgate the ability to issue out the opinion to Yoo.
Well, the third question ought to be where the hell is it?
Constitution of the United States, Article I, Section 8:
A sharp reader, that Yoo…
Barney ate it.
Professor, nice catch, but Yoo relegates you to footnote 13:
Such great lawyers in the Bush Administration
Ashcroft = A**hole
Yoo = Poo
Addington = Assington
Goodling = Gooperling
Chertoff = Jerkoff
Bybee = Boby
Miers = Mired
Gonzales = Gonorrhea
74 - what broke me the most of the MCA was that, no matter how bad the OLC opinions and authorizations, they were specific to the fact that the people had to actually be unlawful enemy combatants and if someone ever got to court and could show they were not (as so many were not) THEN the house of cards collapsed and they all knew it (that’s why they HAD to find everyone at GITMO to be an unlawful combatant at the CSRT hearings and try hard to keep someone like Kurnaz out of the court system - bc the war crimes and crimes in general were NOT covered by the opinions if someone was not an unlawful enemy combatant and that alone should have made everyone pause)
But with the MCA, Yoo et al were able to get something that they couldn’t through their opinions. Congress created an irrebutable presumption that people who were taken to GITMO were unlawful enemy combatants if a CSRT had said they were - no matter how clearly wrong or how long it took for the CSRT.
So Congress willingly went a huge step beyond the torture memos. It’s why I think Harry Reid/Carl Levin(yeah, I know his ‘vote’ on the MCA, but look at what he did on the DTA and how he refused to keep the MCA from coming out of committee) et al are just as slimey and blergh as John Yoo.
Interesting reformulation of Youngstown by Yoo (or Addington or Chertoff).
The Youngstown language itself refers to the “zenith” of presidential power as being when the president is exercising authority enumerated in the Constitution and enforcing congressional legislation to that end. It’s not when the president is acting as CinC.
The president’s lawyers argue that “Zenith Powers” ™ apply by misdescribing his authority as if he were CinC of the US, not just its armed forces; by interpreting the CinC powers as conferring on the president limitless authority; and by interpreting the AUMF against Iraq as authorizing the president’s use of force any time in any theater for any purpose. (Because the GWOT is an endless war that spans the globe.)
I think that’s a stretch.
I understand the concept just fine; but if this is a “formal legal opinion”, should the authority for issuing either be implicit in the position of the signator and, if not, specified in the document? That is the standard I have always operated under….
80 - So Philbin wrote an opinion saying that, “Congress cannot exercise its ,authority to make rules for the Armed Forces to regulate military commissions?”
What a guy. What a concept.