"Oct. 23, 2001 An Office of Legal Counsel memo titled "Re Authority for Use of Military Force to Combat Terrorist Activities Within the United States" states that domestic military operations involving terrorism are not regulated by the Constitution’s Fourth Amendment, which bars unreasonable searches and seizures on U.S. soil.
Jan. 25, 2002 An Office of Legal Counsel memo concludes that the War Crimes Act and the Geneva Conventions do not apply to the treatment and interrogation of al-Qaeda prisoners."
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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 conviction of the rectitude of illegal search and seizure inflicted on American citizens that appealed more to these lawyers in writing these papers. Maybe it was the fees. Ah. No. These were government types, at least for the season.
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 way American soldiers could be trained to think that such behavior is appropriate. pl
http://www.washingtonpost.com/wp-dyn/content/article/2008/04/05/AR2008040502140.html
To me, the lawyers seem Sir Richard Rich types (Thomas Cromwell’s opportunist in “A Man for All Seasons”).
Shakespeare, who could have done him justice, didn’t. Too bad.
Wiki
Much better version.
IMAGE He looks so familiar. Should have submitted the image for What’s This on TA.
For all the fuss and feathers over using the military in domestic law enforcement (banned by Title 18 of the USC Posse Committas statute) it is interesting that it is never mentioned. Okay must be because criminal laws, including the Constitutional protections on due process are not being enforced by the military even when they are pursuing terrorists domestically. So they must be doing something else. What exactly are they doing? Seems no one is at home in the Executive Branch that is able to answer that question but if they can’t illegal use of appropriated funds and personal liability for all who signed off on it under existing statute and case law. Good that many appointees since 9/11 and Senior officers were well paid because clearly and in rem case under the civil war statutes allowing private attorney generals to recovery of misspent funds in civil fraud or even criminal fraud actions, even if DOJ takes the case over. Here is a really gold mine for private attorneys of the former personal injury class. And it will give John Woo a chance to represent them. Oh! That’s right he is hiding out as a law professor. By the way with the federalization of terrorism criminal statutes over the last two decades interesting how few cases have actually been made. Guess just avoiding the courts is the strategy of DOJ and the U.S. Attorneys. it will be really interesting to see if the next AG has brains, guts, and is interested in protection of the Constitution. Or he/she could just pursue recovery of funds under the theory above, perhaps a class action filed after taking office as AG. After all the money was spent so now to find the deep pockets.
In the ’50’s and ’60’s conservatives made a lot of hay by pointing out how communist and socialist governments systematically reduced and removed their citizen’s civil liberties, restricted freedom of movement and expression, tapped phones and opened private mail, maintained files on dissidents and sought to destroy their lives and careers, and ultimately how those nations were the antithesis of freedom and democracy.
Now, we find that in the name of our freedom and safety, our own government has duplicated, and even exceeded the eastern bloc. And they are proud of their work, and aren’t done by half. Without irony or self-reflection, they seem to have taken ‘1984’, ‘The Trial’, the Marquis de Sade, and ‘Fahrenheit 451’ as instructional texts. Ming the Merciless has been retasked as the mission statement.
Once we could say that we were in the fight and deserved to win because we were better than our adversaries. We could point to our demonstrable freedom, liberty, the open and evenhanded application of the law.
Now we anticipate our own military actions within our borders. We find that we have been lied to by the government about domestic spying and wiretaps. Our most respected politicians and reporters have lengthy, reasoned conversations about when pain becomes torture, and just how and where to apply it to what degree.
We’ve been told that the terrorists want to attack us because of our freedoms. What will we say when they attack us after we have no freedoms left?
Democracy was never supposed to be ‘safe’, simple, or easy. Democracy was and is the grandest gamble. And it has been worth the risk – showing what people who are free to think and act can achieve.
But it seems we have tired of freedom and are willing to meekly surrender it to a third rate gang, whose only goal and accomplishment seems to be enriching themselves.
History is full of craven and incompetent governments and rulers. I had thought mine was better. I had not thought it possible that it could do such immense damage to itself and the nation in such short order. And I fear what we may be able to recover.
A friend is currently in law school at UC Berkeley. He speaks in admiring tones of his professor and mentor John Yoo. When I scoff he tells me Yoo is a legendary legal mind.
A legal system which can name victims as terrorists and torture as an implement of free peoples has lost all practical use in the real world. John Yoo and the others at DOJ are clever arrogant silver-tongued monsters without a trace of wisdom or ethics. He and his ilk are little better than the Hollywood screenwriters I was in danger of becoming a few years ago: you get ‘notes’ from the boss about what kinds of scenes they want to see and they don’t care how you get there. You interminably juggle words (my one script for New Line we rewrote 58 times before we satisfied the terms of the ‘first rewrite’) until they are satisfied. All meaning and relevance are lost by day two.
What’s the solution? Another friend is fond of recalling his days in Holland, where the ENTIRE COUNTRY is ruled from a book of laws no more than 150 pages long.
Pat,
I just read your post.
Where’s the public outrage over Yoo (Prime) and Yoo (Two)? These
are outrageous documents. The latest revelation (for me, at least)
was to discover that Yoo gave interrogators the green light to use
mind-altering drugs on the captives.
I’m not a lawyer, but it’s perfectly clear to me that Cheney and
Addington were doing an end-run: They used this arrogant, pliant
deputy assistant attorney general to get just about everything they
wanted, particularly with regard to shutting down opposition from
the JAGs. Think about it: A mere deputy assistant attorney general.
A small fish indeed, but one who was willing to give them the open-
sesame that they wanted.
I’m about half-way through the NYT reporter Eric Lichtblau’s new
book (Bush’s Law), and, let me tell you, it’s a revelation as well.
I don’t even know where to begin: Whether it’s the piling on of
story-after-story of innocent people swept up by the FBI; the use
of “national security letters”–and worse, without recourse even to
a judge’s signature on a warrant; the fact that exactly one member
of the FISA Court was allowed to rule on applications of “The
Program”; or the fact that Larry Thompson, the Deputy Attorney
General of the United States, our # 2 law enforcement officer,
wasn’t even read into “The Program.” Thompson, who was Ashcroft’s
first DAG, would be presented with classified documents to sign-off
on that he hadn’t even been allowed to read! Thompson, to his
credit, refused, though he didn’t do what he should have done and
what his successor Comey insisted on, which was to be read into
“The Program.”
Talk about a Kabuki Dance.
best. j
No doubt these lawyers are kindred spirits with those who wrote Hitler’s Nuremberg Laws of 1935. These deprived German Jews of their citizenship and forbade marriages between Germans and Jews, as well as the employment of German servants by Jews. Talk about “Kool-Aid drinkers!”
Armchair warriors are always the toughest, meanest, blood-thirstiest crew around, doncha know?
These boyos (and a sprinkling of girlos) think nothing of shredding constitutions with their bare hands all the while dreaming of starring as themselves in Jack Bauer’s newest episode of “24” as he tortures our nation to safety.
Snark aside, these faux warriors deserve their own Judgement at Nuremberg, not least for crimes they’ve committed in our names!
I can’t help but think that 9/11 had to appear to the top echelons of this administration as making them look like the greatest collection of f***ups in US history. Much of what transpired was emotionally meant to make thiss threat ‘so’ severe that now questions could or should be asked at efforts to combat it. For a variety of reasons the mainstream press has to a great extent either bought in to that or has been efectively manipulated by thei administration. They failed and they’ve been posturing their way around that failure ever since. On national security and terrorism this top group ‘has no clothes’. those who do know what the hell they are up to , like the Col., are side lined or ignored.
Since we have enemies actions have to be taken and procedures outlined. What we’ve known and are now seeing exposed is esentially policy hysteria in the guise of the tough deciders. Mostly they’re, in my view, dealing with their own internal guilt for being caught not only with their ‘pants down’ but in arrogant denial of the risks they were taking about the risks they were engaged in and ignoring or ‘processing. My favorite is Rice’s “Who would have thought of airplanes?” When the french almost lost the Eiffel Tower or other parts of Paris 2 years before [?] to a hijacked commercial jet; not to speak of the guy in the Phillipines who was trying to down several commercial jets at one time and was fortunately captured and neutralized a coupl of years earlier.
The top group of this administration in its first term had a number of people who were good at playing on ‘security’ fears for permanent political power and advantage. This is just that game writ large, combined with an inexcusable failure in their area of “expertise”, national security.
There are clearly real dilemnas all of which could be and should be met in an orderly and coherent way. If you throw out the “Principles” with the bath water, you then have no standards. I remember the Col some time back writin to the issue of torture and as I remember it pointing out that one might do it and then deal with the consquences, not throw out the Principle to allow the conduct.
This has been too long and I fear somewhat incoherent. Simply put the top of this administration looked like ‘damn fools’ by noon on 9/11. they have been resonding since at least in part to obscure and deny that and to absolve themselves of responsibility. Part of that is to cry “crisi, crisi,” all rules are off, this is so huge. BS it’s bad and dangerous but not the end of the world unless we make it so. In the old brown shoe Army I served in the bottom line was simple as I recall it: “The commander [at any level] is responsible for every thing his command does or fails to do”. Rough, yes, inclusive,yes, and still an excellent initial test of any one in authority.
I don’t think some of you quite understand that you are paying the price for your own inaction in tolerating these animals.
If the United States economy gets into more trouble, and eventually requires a bail out by China and the Arab states, then I think you will discover that the price you are going to have to pay is considerably inflated due to the works of Bush and Cheney.
That price will include at a minimum, Israel, Taiwan, and a raft of social and economic reforms that none of you are going to like.
Look here for an example – this is what the IMF did to Argentina when it got into financial trouble.
http://www.thirdworldtraveler.com/South_America/Argentina_Disint_Revol.html
While we all wish for perspective, historians are now agreeing that the current WH is the worst ever. Worse than Buchanan, who enabled the largest loss of American life in our history, the civil war.
Torture worked for the Spanish Inquisition and the Soviet gulag and is similarly creating useful show trials in this election year. Look at the political repression happening in Alabama and one can understand why the Democrats are such ‘cowards’. Best to hold your breath until 2009. Or bury the truth as the media is doing so well.
After all, we don’t want another civil war. Especially if the neocons really want the ‘end times’ in their lifetime.
GregO
I don’t agree with you about Buchanan. He was trying to hold the Union together through compromise while preventing the mass slaughter that Lincon’s election triggered. Sorry. pl
How does an ordinary citizen who really values our Constitution maintain optimism in the face of the most blatant shredding of our supreme law?
Its not one thing anymore. From warantless spying to no habeas corpus to torture of detainees and now the Fed transferring taxpayer funds to shareholders and bondholders of specific private corporations – we have crossed the rubicon. All done on the basis of fear. Using this trumped up fear of terrorists and the collapse of the financial system to eviscerate our liberties and our constitutional framework.
The oath any public official – elected or unelected – takes, is to protect and defend the constitution. Not to keep us “safe” or to “prevent” the financial markets from meltdown.
Yet. Its that very oath that they disregard.
Quoted by atty. Charlie Carp:
“Prof. Yoo willfully mistated the law — with respect to both Quirin (see n. 13) and Youngstown, at the least — for the purpose of allowing criminals engaging in criminal conduct to claim reliance on advice of counsel. He’s a mob lawyer, not fit to be considered scholar or gentleman.
A proper statement of the holding of Quirin on the point made would have shown that his entire analysis was contrary to the authority upon which he was basing it.
Obviously, Prof. Yoo might think (contrary to the views expressed by Justice Alito and Chief Jutice Roberts at their confirmation hearings) Youngstown wrongly decided. At an absolute minimum, though, he’s obligated to say so and explain coherently when advising a client as to what the law provides.” – -Charley Carp
“This is, I think, a serious breach of legal ethics: It is a violation of the Code of Professional Responsibility to lie to your clients by omitting key Supreme Court cases from your memos. It does raise the question of whether John Yoo is incompetent at his university duties: budding lawyers need to learn what their professional ethical responsibilities are, and someone who does not understand them cannot teach them.”
Berkley Economics Professor J. Bradford DeLong
How does this guy (Yoo) not get heckled at any course he “teaches” at Boalt Hall? How does any self-respecting law Student at such a prestigious Law School not call him out at any opportunity. I hope he doesn’t have any large lecture hall courses in his fall schedule ….
If you want to read a far better story about the torture memos and Yoo’s legal opinion that the 4th amendment didn’t apply to the president head over to consortiumnews, Robert Parry’s site, and read Jason Leopold’s two most recent pieces on the issue.
The Post would do well to read it too. Leopold, you see, went to the store and bought John Yoo’s book and found that Yoo had described what he did while at the DOJ in this book. Leopold also dug out some facts that Yoo first presented these wild ideas ten days after 9/11. Leopold also adds significantly to the timeline by showing how Mary Walker, the Air Force general counsel worked with Yoo on this.
Its a must read. Pity these reporters at MSM outlets.
French philosopher Bernard-Henri Levy recently spent a year travelling through America and put them into a book “American Vertigo : Traveling America in the Footsteps of Tocqueville”. What he said about Guantano Bay was interesting. Everything he saw in Guantanamo he had already seen in bits and pieces elsewhere when looking at America’s domestic prison system.
Lawyer’s in the Whitehouse who advocate torture and media that debates torture like its tax policy seem more like symptons than the root problem. Maybe if you want to understand why torture is acceptable you have to figure out why 1 in 99 incarcerated is acceptable first.
If you want to read a far better story about the torture memos and Yoo’s legal opinion that the 4th amendment didn’t apply to the president head over to consortiumnews, Robert Parry’s site, and read Jason Leopold’s two most recent pieces on the issue.
The Post would do well to read it too. Leopold, you see, went to the store and bought John Yoo’s book and found that Yoo had described what he did while at the DOJ in this book. Leopold also dug out some facts that Yoo first presented these wild ideas ten days after 9/11. Leopold also adds significantly to the timeline by showing how Mary Walker, the Air Force general counsel worked with Yoo on this.
Its a must read. Pity these reporters at MSM outlets.
Great comments, but we seem to be ignoring the glaring truth that all these actions were taken by legal “conservatives”, of which this Yoo character is just one of many. That common political ideology must be factored into how these grotesque “legal” rulings came about. This is your law on “conservatism”–any questions?
These armchair gucci “law-warriors” simply think that the executive is a friggin’ dictator if he claims to be wearing the C-in-C codpiece permanently, whoever or whatever the claimed “enemy” might be.
As to the future, the fact that these various revelations of extreme executive power masquerading as “law” never became actual news and are now already forgotten from last week shows the hopeless degeneration of the Grand Republic. And with a slew of new Cheneyists now ensconced as “judges”, these Yoo-ha “opinions” will ultimately be declared the actual law of the land.
The fact that these simply absurd memos (justifying monstrous actions) are going to be torn to shreds and Yoo mocked by most self-respecting law professors won’t get us anywhere, nor will it get on the cable news “team coverage” circuses.
As the intelligentisia would say in the endless “last days” of the czar, pass the vodka. This is a mess that can’t be cleaned up even if “we” wanted to, and not many Americans want to clean it up anyway.
Walrus is right. The great unwashed, intimidated, lazy and gutless U.S. public allowed the Yoos to have been spawned.
Watching Feith on 60 Minutes tonight made me want to vomit. This guy did not (and still does not) have a clue.
While American grunts sit in brigs for minor offenses or for carrying out questionable deeds they were ordered to perform, guys like Yoo, Feith, Cheney and Bush go unpunished; indeed, they are handsomely rewarded.
The nation needs a large-scale mutiny to bring these people to justice. Senior military officers should not remain silent lest they be tarred with the same brush.
The condition of the nation is not of politics; but rather one of criminal conduct.
y’all should read this:
Shooting down planes????
http://www.opednews.com/articles/genera_jason_le_080404_white_house_query_le.htm
April 4, 2008
White House Query Led to Memo Advising Bush to Ignore Fourth Amendment
Eleven days after 9/11, John Yoo, a former deputy in the Justice Department’s Office of Legal Counsel, drafted a 20-page memorandum that offered up theories on how Fourth Amendment protections against unreasonable searches and seizures would be applied if the U.S. military used “deadly force in a manner that endangered the lives of United States citizens.”
Yoo came up with a number of different scenarios. He suggested shooting down a jetliner hijacked by terrorists; setting up military checkpoints inside a U.S. city; implementing surveillance methods far more superior than those available to law enforcement; or using military forces “to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire,” says a copy of the little known Sept. 21, 2001 memo.
I have a question.
Obviously most if not all of the posts on this thread so far have been strongly condemnatory of the apparent conclusion of Yoo’s memo concerning the lack of force of the 4th Amendment in certain circumstances. (Not to mention the entire Bill of Rights it would logically seem, though Yoo’s entire memo is still classified as I understand it.)
But my question is whether you all condemn this on the same basis? That is, on the principle that no, the 4th (and the Bill of Rights) is/are inviolable? Or just that Yoo and Bush are *unnecessarily* acting like Bush can ignore same now because the circumstances are simply not exigent enough?
For instance obviously the Const. and the Bill of Rts. were drafted when the idea of war was thought to very possibly include an invasion of the U.S. (And then came the War of 1812 of course and Washington being burnt, and indeed even during WWII there was some concern about a Japanese invasion of Alaska and maybe Hawaii too, wasn’t there?)
Nevertheless, I can still see someone arguing that no, the 4th and the Bill of Rt.s were still intended to be inviolable. Just as I can see someone arguing that they aren’t, but that it would have to amount to some roughly equivalent degree of direness for them to be violable.
I’m not taking sides, just wondering.
I know I was struck by what seemed an almost unquestioned acceptance of the idea that Bush would have been entirely within his rights to have shot down that last airliner on 9/11 if he could have. Obviously woulda deprived a whole lot of people of a lot more than due process. And you have to wonder how far this could go then too: Can a Prez. nuke an entire U.S. city to take out someone he or she says is carrying a terrible bacteriological weapon?
Would be interested in your thoughts.
Also, a note for those even more interested in Yoo. On the Medellin case thread below we’re kinda waiting/hoping for a post from Sidney Smith on this “unitary executive” idea that Yoo seems to rely on alot. Should be interesting so you might wanna watch for it.
How can Feith be given air time? Why doesn’t the media simply collect all the documentary evidence that has surfaced showing intel was cherry picked and confront him on it? I mean really confront him with tough questions.
What I find troubling is that these architects of war have found a second life in academia. Why would any higher education institution want to employ them?
Colonel,
‘suits’ like former doj weenie john yoo who have never seen nor will likely ever see combat or be in the cross-hairs of danger/conflict, it’s sooooo easy for them to make ‘memos’ that affect both uniformed and intel personnel, as they are ‘insulated’ from the ‘aftermath/fallout’ of their ‘memos’. at the end of wwii we prosecuted at nuremburg individuals like mr. yoo. too bad that mr. yoo can’t be forced to have to give accounting for his ‘memos’, and the resultant sufferings they have wrought.
Sometimes when you are feelin’ superior to the sad little people who insist on clinging to their Constitutional fantasies for comfort in times of trouble you’ve just got to take charge and get real.
It would be ironic if it were not so deliberate and calculated that this royalist crap is being generated by the same parties who have convinced America that those who oppose such policies are anti-American elitists, eggheads and wimps.
I still truly believe that Cheney, Addington, and their yes-man Yoo were not ever really concerned with making torture legal, but with asserting (or in their twisted world, re-asserting) the primacy of the Executive over the Legislative and Judicial branches of government. That’s been Cheney’s hobby horse for 20-30 years, even when he was a Congressmen he wanted a stronger and stronger Executive. 9/11 was the perfect opportunity to get that, and when Congress refused to give them ultra-broad powers domestically shortly after 9/11, they did an end run around Congress.
For them, the key issue is executive prerogative, not torture, and not about protecting America or its people. If it were, we wouldn’t have had Katrina…
Colonel, you’ve obviously read Martin Luther: “The best way to drive out the devil, if he will not yield to texts of Scripture, is to jeer and flout him, for he cannot bear scorn.”
It is reasonable to inquire if the OLC had a hand in crafting the Gates’ memo where, at least ostensibly, private security contractors are under UCMJ. Why would the Secretary of Defense, of all people, allow the USDOJ to have first shot at prosecuting a private security contractor? If ever there was a group who would protect Blackwater, it’s the OLC.
Frontline, led by Jane Mayer, offers some great insights into the OLC.
http://www.pbs.org/wgbh/pages/frontline/cheney/themes/olc.html
It all goes back to Addington, which leads to this point. If Cheney, through Addington, wants to deep six a prosecution of Blackwater, all he has to do is call the OLC and have the USDOJ pick up the case.
John Yoo should not be the only person held accountable much less so would the public be satisfied with just this scapegoat. If your the President and the military, without your knowlege, starts a torture regime, you are responsible. If it is odne with your knowledge, you are responsible. Every officer and soldier complicit in what they know to be illegal, is responsible. Every single one of them had a duty to refuse that order and faced courts martial. Had they done that and fulfilled their duty and obligations to the people of the US, these abuses certainly would have been hindered if not completely stopped, (they still continue today), because the sheer number of resignations and courts martial would have certainly aroused some suspicion, attention, etc. that just simply could not be covered up.
Of course, the reality is, according to the ABC News report the other night, (finally catching up with progressive blogs that have been on this for years), Bush, Cheney, Powell Ashcroft and Rice drew up the torture regimen down to details themsellves, then sought legal protection, (that should have been refused), then issued orders, (that should have been refused), that were followed and tragedy predictably resulted. Tofocus on John Yoo (although very deserving) is to lose sight of the big picture – that the military and government fromhighest to lowest in the chain of command, failed in their duties. Period. It is because of the lack of a spine to refuse an unlawful order, (but apprrently brave enough to torture unarmed prisoners in their control), in any person in the chain of command from top to bottom that led to this dark stain on the our nation. The ugly truth is everyone is at fault, top to bottom, all should be held accountable, if we really believe in the ideals espoused by our true laws, treaties and the Constitution, we would come to grips with this. We cannot afford such abhorrent systemwide failure on such crucial issues. We can’t fix it if we don’t recognize that the problem is systematic and complete from top to bottom instead of settling on a the canard of a pip squeak fall guy who was taking orders he should have refused.
You can’t blame John Yoo without blaming the entire adminitration and you can’t blame them without blaming people like General Sanchez and you can’t blame General Sanchez without blaming every subordinate down to the rank of private for their complicity and participation.
The soldier, general, lawyer and President all take practically identical oaths to uphold the law and all have almost identical responsibilites in their canon of ethics, constitutional duties and military guidelines to refuse to participate in illegal acts. As much as Yoo should be disbarred and disregarded, so should every other person involved.
Just as a background matter, here, in relevant part and with my emphasis added but otherwise cut and pasted from the Supreme Court’s Hamdan decision, is the Joint Congressional Resolution passed in the wake of 9/11. This authorization granted the power to the President to:
“use ALL necessary and appropriate force against those nations, organizations, or persons HE determines planned, authorized, committed, or aided the terrorist attacks … in order to prevent ANY future acts of international terrorism against the United States by such nations, organizations or persons.”
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