Archive for March 2nd, 2009

Leopold on newly-released Bush Office of Legal Counsel memos

I’ve been busy today and not had more than a moment to peek at the Office of Legal Counsel memos released today that I posted about earlier. Jason Leopold has looked them over and tells us what he found. Obviously they were kept hidden because it would embarass the Bush administration to have us know that they had received legal opinions that essentially lifted the Constitution for the duration of the “War on Terror,” a war that was framed in such a way that it might never end:

Yoo Memo Said Bush Could Limit Freedom of Speech During Wartime

By Jason Leopold

Two days before a Senate committee launches hearings to determine how best to investigate Bush-era terror policies, the Department of Justice publicly released nine previously secret and highly controversial legal opinions written by former agency attorney John Yoo that gave unfettered and unchecked powers to George W. Bush in the aftermath of 9/11.

The most controversial of the batch is arguably an Oct. 23, 2001 memorandum entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” that concluded, “that the Fourth Amendment had no application to domestic military operations.”

The Fourth Amendment to the U.S. Constitution states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”

The existence of the memo was first revealed last year when the American Civil Liberties Union obtained yet another secret memo drafted by Yoo about interrogation techniques in which he footnoted the Oct. 23, 2001 opinion.

Until now, the memo has remained a closely held secret that the Bush administration kept even from the House Judiciary Committee which requested the document on numerous occasions last year.

The memo said Bush had the legal authority to order searches and seizures without warrants against individuals believed to be terrorists.

“We do not think a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant,” says the Oct. 23, 2001 memo prepared by Yoo for then White House Counsel Alberto Gonzales and Defense Department attorney William Haynes. “We think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks.”

The memo also said Bush could put restrictions on freedom of the press and freedom of speech in his war against terrorism.

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Yoo wrote. “The current campaign against terrorism may require even broader exercises of federal power domestically.”

Yet three months before Bush exited the White House, one of his Justice Department appointees drafted a “memorandum for the files” that eviscerated Yoo’s Oct. 23, 2001 legal opinion, calling his former colleagues views on suspending first amendment protections “unnecessary” and “overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario.”

The author of the Oct. 6, 2008 memo, Stephen Bradbury, was formerly the head of the Office of Legal Counsel. His legal work, along with Yoo’s, was the subject of an investigation by a Justice Department watchdog. It’s unclear what prompted Bradbury to draft the memo. He wrote last year that Yoo’s Oct. 23, 2001 legal opinion “states several specific propositions that are either incorrect or highly questionable.”

Bradbury attempts to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

The Oct. 23, 2001 “memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law,” Bradbury wrote.

Yet that is precisely what Yoo did.

Bradbury identifies five controversial points contained in Yoo’s Oct. 23, 2001 memo and wrote “appropriate caution should be exercised before relying in any respect on the memorandum as a precedent of OLC, and that the particular propositions identified should not be treated as authoritative.”In releasing the memos, Holder said “Americans deserve a government that operates with transparency and openness. It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making.”

Hours before his agency released the secret memos, Attorney General Eric Holder, in a speech before the Jewish Council of Public Affairs in Washington, D.C., said, “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that school of thought misguided, I fear that in actuality it does more harm than good.”

Indeed. A memo Yoo wrote two weeks after 9/11 discussed ways the administration could spy on U.S. citizens without obtaining warrants from a secret court.

A March 13, 2002 memo written by Jay Bybee, the former assistant attorney general for the DOJ’s Office of Legal Counsel, said Bush had the authority to transfer suspected terrorists to other countries without concern for whether they would be tortured. Bybee’s memo was written one month after Bush suspended Geneva Conventions protections for al-Qaeda and Taliban prisoners.

“Although such transfers might violate our treaty obligations if extradition is to a country where torture is likely…To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured,” Bybee wrote. “So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer even if the foreign country receiving the detainee does torture him.”

Bybee’s memo said a 1998 law that prohibited the U.S. from handing over prisoners to countries that engaged in torture was not valid because it interfered with the president’s constitutional powers. Bybee is now a federal judge on the 9th Circuit Court of Appeals in San Francisco. His legal advice to the White House while working at the Department of Justice was scrutinized by DOJ watchdog in a still classified report completed last year.

In an April 8, 2002 memo, the OLC said Bush did not need approval from congress to hold military commissions to prosecute alleged terrorists. However, the Supreme Court shot down that theory and declared military commissions illegal because Congress did not explicitly approve them. Congress did pass the Military Commissions Act in 2006 to prosecute detainees held at Guantanamo Bay.

Jameel Jaffer, the the director of the American Civil Liberties Union’s National Security Project, said the memos released Monday show “essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.”

“We hope today’s release is a first step, because 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 Jaffer, whose organization has tried to obtain the memos under the Freedom of Information Act. “In order to truly turn the page on a lawless era, these memos should be released immediately.”

Senate Judiciary Committee Chairman Patrick Leahy, who will convene a hearing Wednesday to discuss the formation of a “truth commission” to probe the Bush administration’s policies, said the newly released legal opinions “regarding national security remain of great concern.”

The legal opinions are:

March 2nd, 2009

Who watched the torture tapes?

emptywheel asks “Who watched the torture tapes?”

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

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

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

And this is perhaps the most interesting bit:

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

March 2nd, 2009

Cohen: Iran, the vibrant society

Roger Cohen refuses to back down when he is accused of antisemitism or Nazi sympathies for recognizing the complexity of modern Iran as a society:

Iran, the Jews and Germany

By Roger Cohen

So a Jerusalem Post article says that I’m “hardly the first American to be misled by the existence of synagogues in totalitarian countries.”

The Atlantic Monthly’s Jeffrey Goldberg finds me “particularly credulous,” taken in by the Iranian hospitality and friendliness that “are the hallmarks of most Muslim societies.” (Thanks for that info, Jeffrey.)

A conservative Web site called American Thinker, which tries to prove its name is an oxymoron, believes I would have been fooled by the Nazis’ sham at the Theresienstadt camp.

The indignation stems from my recent column on Iranian Jews, which said that the 25,000-strong community worships in relative tranquillity; that Persian Jews have fared better than Arab Jews; that hostility toward Jews in Iran has on occasion led to trumped-up charges against them; and that those enamored of the “Mad Mullah” caricature of Iran regard any compromise with it as a rerun of Munich 1938.

This last point found confirmation in outraged correspondence from several American Jews unable to resist some analogy between Iran and Nazi Germany. I was based in Berlin for three years; Germany’s confrontation with the Holocaust inhabited me. Let’s be clear: Iran’s Islamic Republic is no Third Reich redux. Nor is it a totalitarian state.

Munich allowed Hitler’s annexation of the Sudetenland. Iran has not waged an expansionary war in more than two centuries.

Totalitarian regimes require the complete subservience of the individual to the state and tolerate only one party to which all institutions are subordinated. Iran is an un-free society with a keen, intermittently brutal apparatus of repression, but it’s far from meeting these criteria. Significant margins of liberty, even democracy, exist. Anything but mad, the mullahs have proved malleable.

Most of Iran’s population is under 30; it’s an Internet-connected generation. Access to satellite television is widespread. The BBC’s new Farsi service is all the rage.

Abdullah Momeni, a student opponent of the regime, told me, “The Internet is very important to us; in fact, it is of infinite importance.” Iranians are not cut off, like Cubans or North Koreans.

The June presidential election pitting the incumbent, Mahmoud Ahmadinejad, against Mohammad Khatami (a former president who once spoke in a synagogue) will be a genuine contest as compared with the charades that pass for elections in many Arab states. No fire has burned the Majlis, or parliament, down.

If you’re thinking trains-on-time Fascist efficiency, think again. Tehran’s new telecommunications tower took 20 years to build. I was told its restaurant would open “soon.” So, it is said, will the Bushehr nuclear power plant, a project in the works for a mere 30 years. A Persian Chernobyl is more likely than some Middle Eastern nuclear Armageddon, if that’s any comfort.

For all the morality police inspecting whether women are wearing boots outside their pants (the latest no-no on the dress front) and the regime zealots of the Basiji militia, the air you breathe in Iran is not suffocating. Its streets at dusk hum with life — not a monochrome male-only form of it, or one inhabited by fear — but the vibrancy of a changing, highly educated society.

This is the Iran of subtle shades that the country’s Jews inhabit. Life is more difficult for them than for Muslims, but to suggest they inhabit a totalitarian hell is self-serving nonsense.

One Iranian exile, no lover of the Islamic Republic, wrote to me saying that my account of Iran’s Jews had brought “tears to my eyes” because “you are saying what many of us would like to hear.”

Far from the cradle of Middle Eastern Islamist zealotry, she suggested, “Iran — the supposed enemy — is the one society that has gone through its extremist fervor and is coming out the other end. It is relatively stable and socially dynamic. As my father, who continues to live there, says, ‘It is the least undemocratic country in the region outside Israel.’ ”

This notion of a “post-fervor” Iran is significant. The compromises being painfully fought out between Islam and democracy in Tehran are of seminal importance. They belie the notion of a fanatical power; they explain Jewish life.

That does not mean fanaticism does not exist or that terrible crimes have not been committed, like the Iran-backed bombing of the Jewish community center in Buenos Aires 15 years ago.

But the equating of Iran with terror today is simplistic. Hamas and Hezbollah have evolved into broad political movements widely seen as resisting an Israel over-ready to use crushing force. It is essential to think again about them, just as it is essential to toss out Iran caricatures.

I return to this subject because behind the Jewish issue in Iran lies a critical one — the U.S. propensity to fixate on and demonize a country through a one-dimensional lens, with a sometimes disastrous chain of results.

It’s worth recalling that hateful, ultranationalist rhetoric is no Iranian preserve. Avigdor Lieberman, Israel’s race-baiting anti-Arab firebrand, may find a place in a government led by Benjamin Netanyahu. He should not.

Nor should racist demagoguery — wherever — prompt facile allusions to the murderous Nazi master of it.

March 2nd, 2009

Controvertial Bush Office of Legal Counsel memos released

In one positive action from the Obama Justice Department, they have just released a number of the controversial memos from the Bush administration Office of Legal Counsel [where John Yoo was located]. The documents can be found here. As can be seen, theses memos concern authorization for rendition, for declaring individuals “enemy combatants,” and for wiretapping. The first memo explains that these others are no longer in effect.

Here is a list of the released menos:

March 2nd, 2009

Hentoff: Obama’s state secrets’ echo Bush

Nat Hentoff joins those criticizing the Obama administration’s support for Bush abuses:

Obama’s ‘state secrets’ echo Bush
U.S. wants torture of suspect kept under wraps

By Nat Hentoff

Last year, Britain’s Foreign Office angered the British High Court by ordering it to censor seven paragraphs from a previous ruling in the case of a British legal resident, Binyam Mohamed, who had been “rendered” and tortured by the CIA in Afghanistan, Pakistan, Morocco and Guantanamo.

This muzzling of the High Court was caused by a Bush State Department threat to the Foreign Office, a threat renewed last month when Mr. Mohamed’s case came again before the High Court.

Last August, John Bellinger, then chief legal adviser to the State Department, wrote the Foreign Office: “We want to affirm in the clearest terms that the public disclosure of these documents or of the information contained therein is likely to result in serious damage to U.S. national security, and could harm existing intelligence-sharing arrangements between our two governments.”

On Feb. 4, the British High Court wanted to finally disclose those seven paragraphs summarizing actual U.S. reports on Mr. Mohamed’s treatment, paragraphs originally provided to the Foreign Office. The judges expected that “the situation had changed significantly following the election of President Barack Obama, who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment.” (That court is also interested in British involvement with Mr. Mohamed’s interrogations.)

Although all U.S. charges against Mr. Mohamed were dropped last year, this year the Obama administration continues to demand that those seven paragraphs remain secret and was reported by the New York Times on Feb. 18 as having thanked the British government “for its continued commitment to protect sensitive national security administration.”

As Mr. Obama’s Attorney General Eric Holder has already shown in another case involving Mr. Mohamed before the U.S. 9th Circuit Court of Appeals, the Bush-Cheney “State Secrets” policy continues to reign in the Obama administration.

Even a letter sent directly to Mr. Obama by Mr. Mohamed’s British lawyers to look into “the truly medieval ways” in which Mr. Mohamed was tortured has not changed the president’s mind. (See the Jurist Legal News & Research, Web site, Feb. 12).

In the 9th Circuit court papers (Mohamed v. Jeppesen Dataplan Inc.), American Civil Liberties Union lawyers for Mr. Mohamed cite his claim that in Morocco, “his clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis.” It is reasonable to believe that the seven paragraphs involuntarily censored by the British High Court would be quite useful to Mr. Mohamed’s case in both the British and American courts.

The High Court in England reacted angrily to the Obama administration refusal to annul the Bush threat to impair relations with British intelligence about the release of the seven paragraphs. The High Court declared on Feb. 5 its acute disappointment that the United States, “governed by the rule of law,” would continue to censor evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”

Mr. Mohamed, who was on a hunger strike (his only form of protest) at Guantanamo Bay, has finally been released and returned home to England where his lawyers continue to press his case concerning his treatment by the CIA.

The Obama administration wanted a gag rule imposed on the returned Mr. Mohamed, but his lawyers rejected the demand (New York Times, Feb. 24). Before his release, as reported Feb. 18 by the New York Times’ Raymond Bonner, a member of Mr. Mohamed’s legal team – U.S. Air Force Lt. Col. Yvonne Bradley – told reporters his torture by the Moroccans “would make waterboarding seem like child’s play.”

In San Francisco, at the 9th Circuit Court of Appeals, Mr. Mohamed is one of five victims of CIA kidnapping who are charging a subsidiary of giant Boeing Aircraft with providing planes and logistics for the harrowing CIA renditions flights. Mr. Holder sent Justice Department lawyer Douglas Letter to order the court to dismiss the case without discussing it in court.

One of the startled judges, Mary Schroeder, asked: “The change in administration has no bearing?” She was assured that the Obama government’s echo policy on state secrets has been “thoroughly vetted with the new administration.” Another surprised judge, William Canby, puzzled by the invocation of “state secrets,” asked: “You can say something is secret even when a newspaper reporter has it?” (Many newspaper reporters, including this writer, have written in detail about the CIA’s torture flights, including those of the shackled Mr. Mohamed.)

On the same day that the attorney general’s silencer addressed the court, Mr. Holder himself announced that the Justice Department will review all the pending cases in which the Bush administration asserted state secrets, to ensure they are invoked “only in legally appropriate situations.” I wonder if the attorney general gets extra pay for being the president’s emergency public relations flack while actually commanding that this crucial case be dismissed.

The ACLU’s Ben Wizner, arguing Mr. Mohamed’s case at the 9th Circuit, said: “This administration is going to have to face the issue of accountability. [It] cannot pretend the last seven years didn’t happen.” Want to bet?

Barack Obama’s White House counsel Gregory B. Craig on Feb. 18 was reported telling the New York Times’ Charlie Savage: “We have been some of the most articulate and vociferous critics of the way the Bush administration handled things. There has been a dramatic change of direction.”

I would sure like to see Binyam Mohamed’s reaction to that talking point from the “transparent” Obama administration.

March 2nd, 2009

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