Artifice
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RE: OLC memos released
LOL you're going to have to do a lot better job of spin control than that.
Quote: Bush OLC Memos Released
The Obama administration decided to release the DOJ OLC memos relating to the war on terror that the Bush administration had previously fought to keep secret. Unsurprisingly, the nine memos claim vast and sweeping powers on the part of the President to deal with any matter related to terrorism. Essentially, the memos claim, so long as the President was taking action to fight terrorism, he could literally not be constrained by the Cosntitution in any meaningful and substantial way. Neil Lewis of the NY Times focuses on one memo in particular, dealing with the deployment of the military within the United States:
The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.
The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.
“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.
The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”
Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.
Those aren't the only clams advanced by the Bush administration in those early days:
In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.
Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.
The Bush administration also claimed the authority to curtail the First Amendment, stating plainly in one memo that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Reaction to these memos has been predictable. Scott Horton, referring first to the surveillance memo:
It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.
These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.
Orin Kerr, on the surveillance memo:
If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.
If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.
I suppose it's harder to ignore Congressional intent when Congress essentially says "No, we really did mean what we said there" but it seems odd to me to introduce new legislation in response to a twisted interpretation by the executive of already existing law.
Steven Schwin, on the detainees memo:
There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:
As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.
Emphasis mine. Justice Jackson's opinion in Youngstown isn't even mentioned. (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)
And finally, Jack Balkin with the summary:
...two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.
These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.
Most interestingly, we learn that the OLC repudiated these early claims in a memo written by Steven Bradbury in the waning days of the Bush administration. In fact, Bradbury insists that many of these memos were never relied upon, that they were in fact "hypothetical." Which to me sounds like no more than a last-ditch and pathetic effort to avoid accountability at either the hands of historians or the hands of Obama DOJ investigators for actions taken in reliance upon the egregious claims of executive authority put forth in these memos.
http://threewisemen.blogspot.com/2009/03...eased.html
Quote:Mar 3 2009, 6:06 pm by Will DiNovi
Reviewing the Bush Administration
On Monday, the Obama administration released nine previously secret legal opinions crafted by the Office of Legal Counsel to enhance the presidential powers of George W. Bush. The legal memos represent the most comprehensive demonstration yet of the sweeping definition of presidential power approved by Bush administration lawyers in the months after 9/11. They also lend added urgency to Wednesday's Senate hearing on the possible formation of a truth commission to investigate potential abuses of power in the Bush White House.
In a statement on The Department of Justice website, Attorney General Eric Holder said the memorandums were being released in response to "legitimate and substantial public interest." While Holder's insistence that "Americans deserve a government that operates with transparency and openness" will likely play well among human rights activists and congressional Democrats, the new batch of opinions does not include the most controversial memos these groups have been demanding over the past few years. "Dozens of other OLC memos, including memos that provided the basis for the Bush administration's torture and warrantless wiretapping policies, are still being withheld," said Jameer Jaffer, Director of the ACLU National Security Project, in a release issued Monday night. According to DoJ spokesman Matthew Miller, the guidelines proposed by the Attorney General during his confirmation hearing are still in place for these additional policies: a full review will not occur until an assistant attorney general to head the Office of Legal Counsel is confirmed.
Arriving on the heels of reports that the CIA destroyed ninety-two videotapes of interrogations, Monday's revelations underline the challenges that face President Obama and Congress in addressing the controversial legacy of the Bush administration. Senator Patrick Leahy, chairman of the Senate Judiciary committee, has called for a nonpartisan "truth commission" to investigate the use of torture, illegal wiretapping, and other alleged abuses of power during the Bush years. Tomorrow's hearing on the proposal, to be held by Leahy's committee, could represent the first concrete step toward a broad review of civil liberties violations under the War on Terror.
With a similar proposal having been offered by House Judiciary Committee Chairman John Conyers, the idea of examining Bush has gained some traction among prominent Democrats. Some, however, have called for a more aggressive approach.
A number of liberal advocacy groups argue that a truth commission is meaningless without the threat of criminal prosecution. On February 24, over 20 organizations issued a joint statement calling on Holder to directly appoint a special prosecutor to investigate former Bush administration officials. House Speaker Nancy Pelosi has called the truth commission "a good idea," but has also expressed concerns that Leahy's proposal will offer "immunity" for Bush administration officials. "I think that some of the issues involved here, like politicizing of the Justice Department, and the rest, may have criminal ramifications," she told MSNBC on February 25.
Nothing in President Obama's executive orders thus far suggests that he intends to review the previous administration's actions for possible criminal sanctions. The partisan rancor that might be sparked by any domestic or international prosecution is a significant disincentive for prosecution, especially as Obama seeks to build good will among the GOP's ranks and promote his administration as an open, bipartisan regime. But the arrival of Monday's memos and Wednesday's hearing could represent the best chance yet for those favoring prosecution to legitimize their cause. A USA Today/Gallup Poll conducted in February found that 62 percent of Americans favor a criminal investigation or an independent panel. Wednesday's discussions and testimony may have an outsized influence in determining whether consensus coalesces around one or both of these options.
Wednesday's hearing will be the first open, public discussion by leglisators of both parties geared toward crafting a potential review of Bush. With Obama's new Department of Justice having taken its own step toward making the Bush years more available for review, human rights groups and Bush protesters will be eagerly awaiting what comes out of Wednesday's discussion.
http://politics.theatlantic.com/2009/03/...ration.php
Quote:Quote:Horton's not alone in that characterization of the Bush "dictatorship." Legal professor Jack Balkin describes the memos as
...reasoning which sought, in secret, to justify a theory of Presidential dictatorship....
This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.
These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.
What we know is that under the authority of this undoing of the Constitution, the Bush administration acted in at least three areas: torture, rendition, and illegal, warrantless surveillance.
And Ars Technica chimes in:
Quote:"Inter arma enim silent leges," holds the hoary Roman maxim thought to originate with Cicero: In time of war, the laws fall silent. In our own era, few proponents of that doctrine have been as influential or forceful as Berkeley law professor John Yoo, who in the wake of the terrorist attacks of September 11, 2001, worked within the Office of Legal Counsel at the Justice Department to lay the legal foundations for the Bush administration's approach to the war on terror. Despite repeated pleas from civil liberties groups, crucial memoranda authored by Yoo, justifying controversial tactics ranging from coercive interrogation to warrantless surveillance, remained closely guarded secrets—until Monday.
The Department of Justice, citing the "legitimate and substantial public interest" in these opinions, today released a series of nine documents not previously available to the public: six legal opinions issued by Yoo and his contemporaries in 2001-2002, and two more recent memoranda repudiating many of those opinions in strikingly sharp language. Among them are several opinions—two presented in full, one in summary—offering a theoretical basis for President Bush's decision to authorize a program of extrajudicial wiretapping and data mining by the National Security Agency.
The first of these opinions is dated September 25, 2001, just weeks after the 9/11 attacks. In it, Yoo endeavors to respond to an almost astonishingly modest question: Whether it would be consistent with the Constitution to amend the Foreign Intelligence Surveillance Act so as to permit the secret FISA court to authorize (under somewhat more lax standards than apply in criminal cases) surveillance of agents of foreign powers when the gathering of foreign intelligence was "a purpose" of the surveillance. The statute at the time required that this be the "primary purpose" of FISA intercepts, though the USA PATRIOT Act, in what might be seen as something of a compromise, would soon change the standard to a "significant purpose." (Perhaps ironically, this memo is addressed to then-Associate Deputy Attorney General David Kris, later a prominent critic of the legal rationalizations for the warrantless surveillance program, and now Barack Obama's pick to head the National Security Division at Justice.)
Having asserted that the Constitution assigns the president not merely the power but the obligation to act in defense of national security Yoo then portentously observes that "FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards."
Yoo rather perfunctorily concludes that there would be no constitutional barrier to such an amendment. The FISA court, after all, could still determine whether a warrant application simply sought to invoke foreign intelligence as a pretext for a primarily criminal investigation, in violation of the Fourth Amendment. The proposed amendment "would simply allow the Department to apply for FISA warrants up to the limit permitted by the Constitution, as determined by the FISA court." In other words: it can't hurt to ask.
But Yoo then veers from his assigned task into what can only be described as a lengthy and unsolicited digression, laying out his view of the primacy of the president in the national security arena, and the scant limits on presidential discretion to order surveillance targeting foreign terrorists. He writes:
The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of grave and unforeseen emergencies. Intelligence gathering is a necessary function that enables the President to carry out that authority...
The implications of constitutional text and structure are confirmed by the practical consideration that national security decisions often require the unity in purpose and energy in action that characterize the Presidency rather than Congress...
As the Commander in Chief, the President must be able to use whatever means necessary to prevent attacks upon the United States; this power, by implication, includes the authority to collect information necessary for its effective exercise.
Having asserted that the Constitution assigns the president not merely the power but the obligation to act in defense of national security Yoo then portentously observes that "FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards."
Breaking the shackles of the Fourth Amendment
The chain of reasoning to this end is a truly spectacular exercise in casuistry, which for purposes of brevity, we might dub the "if you can shoot 'em..." argument.
But Yoo was only getting warmed up. Less than a month later, on October 23, Yoo would urge the president to cast off the shackles of the Fourth Amendment entirely—jettisoning not only the obligation to seek probable-cause warrants, but even the standard of "reasonableness." In an opinion finding that the Posse Comitatus Act's ban on the domestic deployment of the armed forces was inapplicable to counterterrorist operations, Yoo argues that "however well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy." Rather, he writes, "the Fourth Amendment does not apply to domestic military operations designed to deter and prevent foreign terrorist attacks."
Yoo is quite explicit that the president is "free from the constraints of the Fourth Amendment" with respect to a broad range of activities, explaining that "military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects." The National Security Agency, recall, resides within the Department of Defense.
The chain of reasoning to this end is a truly spectacular exercise in casuistry, which for purposes of brevity, we might dub the "if you can shoot 'em..." argument. Omitting the ample footnotes—heavy on precedent from the Civil War and the War of 1812—it runs roughly as follows. The Fourth Amendment clearly doesn't apply to overseas military operations. (It has precious little application of any sort overseas, but leave that.) And on the home front, the military can clearly use deadly force against invading armies or insurrectionist forces. Moreover, in self defense against a foreign army, the government can even torch private facilities—like fuel reserves—that might be used by an invading force. Since all of these defensive actions entail more severe deprivations of liberty than mere surveillance, and since none of them require prior approval of a magistrate, Yoo would have us infer that the Fourth Amendment is not merely attenuated in the face of the exigencies of national security, but wholly inapplicable.
Finally, one of the later memoranda, authored by Deputy Assistant Attorney General Steven Bradbury in January of this year, summarizes Yoo's interpretation of the Foreign Intelligence Surveillance Act as articulated in a February 2002 opinion. Though that document remains classified, the summary explains Yoo's view that FISA must be interpreted as placing no limits on the president's power to authorize surveillance in the interest of national security.This is, as Bradbury notes with a certain deadpan restraint, "problematic and questionable, given FISA's express references to the President's authority." Other OLC memos drawing similar conclusions are described as "not supported by convincing reasoning."
Indeed, in the waning days of the Bush administration, Justice Department attorneys had occasion to revisit much of Yoo's legal reasoning. Though the summary memos prepared in late 2008 and early 2009 say the DOJ has not relied on the disavowed opinions since 2003, they emphasize, lest there be any doubt, that several of these "doubtful" arguments "should not be relied upon or treated as authoritative for any purpose." Such adjectives as "unconvincing," "not satisfactory," and "erroneous" are liberally applied.
The "if you can shoot 'em" argument—in the terrifying eventuality that anyone found it superficially plausible—is among the casualties. With more of that characteristic deadpan restraint, the 2009 memo concludes that Yoo "inappropriately conflates the Fourth Amendment analysis for government searches with that for the use of deadly force." In other words, a "highly fact-dependent" self-defense justification may be invoked in particular circumstances characterized by a severe threat of imminent harm—an invading army, or even a homicidal thug brandishing a weapon at a police officer. This does not, in fact, license a broad inference that whole constitutional provisions cease to apply altogether whenever there is a general state of heightened threat.
Not all of the specious arguments familiar from the early days of the FISA debates are cast by the wayside, however. The 2009 memo also notes that the OLC's current view, superseding Yoo's now disfavored arguments, is that the NSA program was justified because the congressional Authorization for the Use of Military Force empowered the president to circumvent FISA. It is one of Yoo's former interlocutors, David Kris, who has most decisively dispensed with that argument. As Kris notes, the PATRIOT Act, enacted nearly simultaneously with the AUMF, itself amended FISA, which contains very limited provisions detailing the special powers the executive branch may exercise in the immediate aftermath of a declaration of war. This, Kris argues, makes it very hard to credit the notion that Congress intended to create an enormous implicit loophole in the FISA statute, while doing nothing of the sort in a contemporaneous explicit revision of FISA that also reasserted the statute's privileged status as the "exclusive means" for foreign intelligence collection.
If it is unsettling to contemplate the speciousness of the legal arguments that supported a radical expansion of executive surveillance power, we can at least take some solace in knowing that the most dangerous of these thin rationalizations are finally out in the open—and openly rejected by the Department of Justice. "Inter arma enim silent leges" may have a noble provenance, but it bears remembering what became of Rome.
(This post was last modified: 03-04-2009 06:15 PM by Artifice.)
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