More on Cheney's Torture Confession

I wanted to follow-up on this post in which I discussed former Vice President Cheney admitting that he was a "big supporter" of waterboarding.

There were a couple of reactions to Cheney's appearance on ABC this past Sunday that were right on the money and advance this discussion surrounding his behavior. I wanted to start with Glenn Greenwald who feels that Cheney knows exactly what he is doing...he is taunting the current administration:

In general, people who commit felonies avoid publicly confessing to having done so, and they especially avoid mocking the authorities who fail to act. One thing Dick Cheney is not is stupid, and yet he's doing exactly that. Indeed, he's gradually escalated his boasting about having done so throughout the year. Why? Because he knows there will never be any repercussions, that he will never be prosecuted no matter how blatantly he admits to these serious crimes.

[...]

Does anyone doubt that Cheney's assessment is right? And isn't that, rather obviously, a monumental indictment of most everything?

I think that this is sadly quite accurate. Cheney is not a stupid man and it is quite clear that he feels that he can speak freely about his support for what Attorney General Holder has explicitly stated, is torture. The Obama Administration has held true to their pledge to "look forward" and not to the past on the issue of torture, even when it is clear that crimes and have been committed and even when now, a former Vice President admits to supporting torture on national television.

Scott Horton lays out the section of the Federal Criminal Code that Cheney admitted to violating:

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?

[...]

What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.

It should be pointed out that not only did Cheney admit to supporting torture, but right at the end of the interview was this exchange (emphasis mine):

KARL: And, finally, I know that you have a reunion coming up later this month with President Bush. This'll be the first time you've seen him since leaving office, face to face?

CHENEY: Pretty much, yes. We talk on the telephone periodically, but the first time I've seen him since January 20th.

KARL: What does he think of you being so outspoken in contrast to him?

CHENEY: Well, I don't think he's opposed to it, by any means. I'd be inclined to let him speak for himself about it. The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do.

And that's why I got started on it. I'm the vice president now -- ex-vice president. I have the great freedom and luxury of speaking out, saying what I -- what I want to say, what I believe. And I have not been discouraged from doing so.

Cheney mentions that the lawyers at the Justice Department had "helped us put those policies together" and that he felt it was his role to "defend those people who'd done what we asked them to do." In other words, the Bush Administration wanted to torture detainees and so they asked lawyers like John Yoo and Jay Bybee to craft memos that would allow them to do so. Yoo and Bybee obliged. This is conspiracy to torture and as Scott Horton mentions, a serious crime.

There has been no excuse to investigate for some time now and with the former Vice President's recent comments, there is no justification that the current Justice Department could use to defend not prosecuting those who broke such serious laws.

Holder Appoints Special Prosecutor to Invesigate Torture...Sort Of

Attorney General Eric Holder has announced that he is going to appoint a special prosecutor to investigate whether members of the CIA went too far while interrogating detainees in U.S. custody. Holder is going to name John Durham to lead this investigation, the scope of which will be quite narrow. From the Washington Post article that I linked to above (emphasis mine):

Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

The attorney general selected Durham in part because the longtime prosecutor is familiar with the CIA and its past interrogation regime. For nearly two years, Durham has been probing whether laws against obstruction or false statements were violated in connection with the 2005 destruction of CIA videotapes. The tapes allegedly depicted brutal scenes including waterboarding of some of the agency's high value detainees. That inquiry is proceeding before a grand jury in Alexandria, although lawyers following the investigation have cast doubt on whether it will result in any criminal charges.

[...]

With Monday's looming public announcement, however, the attorney general and his national security team appear to be staking out a middle ground -- rejecting a broad inquiry that could result in possible prosecutions of Justice Department lawyers in the Bush years as well as cabinet officers who developed counterterrorism policy; but giving civil liberties advocates at least part of what they wanted without supporting a full, independent truth commission to examine a host of Bush national security practices.

In other words, this is a sham. Holder is opting to appoint a prosecutor (who is already involved in another investigation) to see if anyone in the CIA acted outside of the "legal" framework that was set up by the Bush Administration (and the OLC lawyers like John Yoo) but the investigation will not have a broad enough scope to examine the legality of the interrogation program itself. Remember when U.S. soldiers at Abu Ghraib prison were prosecuted and labeled a "few bad apples"? This may turn out similarly. The argument for prosecutions is not that officials went beyond what the Bush Administration claimed was legal, but that the Bush Administration's (in this case) interrogation policies need to be examined for criminal wrong-doing. The Attorney General apparently has no interest in doing the latter.

Also, take note of the final paragraph of the Washington Post piece that I quoted above. Notice the framing of the issue, that Eric Holder is "staking out a middle ground" on this issue as if the rule of law is some kind of political debate. While there very well could be potential political implications for appointing a special prosecutor with a broader mandate, this is not the same thing as taking a middle ground on whether to investigate potential violations of the law. After all, how does one take a centrist role and compromise on enforcing the rule of law?

More Reaction to Yoo's Defense of Warrantless Wiretapping

I wrote my initial observations yesterday. Here are more reactions to John Yoo's Wall Street Journal editorial defending the authorization of the warrantless wiretapping program.

AnonymousLiberal:

Not surprisingly, Yoo begins the op-ed with a collosal straw man. He points out how important it is to intercept al Qaeda communications and writes: "Evidently, none of the inspectors general of the five leading national security agencies would approve." Of course, the issue is not whether intercepting communications is a good idea, but whether the program violated the law. Yoo was not a policy maker. He was a lawyer. His job was to state what the law was, not what it should be.

[...]

Yoo is not even trying to make honest arguments here. He would be laughed out of court if he ever made any of these claims before an actual judge. But for some reason he continues to be given valuable op-ed space (and a professorship at Berkeley!) to make these completely disingenuous and unsupportable claims.

Socratic Gadfly:

Ignorance = need for lawlessness, says Yoo...Yep, that’s John Yoo’s latest argument —since we didn’t know what al Qaeda would do after 9/11 we had to break the law to find out!

Dissent:

Saying that FDR did the same thing or that every administration has ignored a law is like my kid telling me not to discipline them for cheating on a test because Johnny cheated, too. Nor did the government in Hamilton’s time have the technological capabilities that it has today.

But while civil libertarians and liberals seem to love to hate Yoo and point the finger at him, the spotlight needs to remain on the men who handpicked him, used him for their own purposes, and who ignored the rule of law.

and Scott Horton was on Countdown with Keith Olbermann last night with fill-in host David Schuster to discuss Yoo's latest defense:

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John Yoo Defends His Position on Warrantless Wiretaps

Former Justice Department Official and infamous author of the "torture memos", John Yoo, has written an editorial in today's Wall Street Journal in defense of his endorsement of warrantless wiretaps.

Yoo's piece defiantly speaks out against critics (including the Inspector General's report) who fault Yoo for providing legal advice that was not in good faith and worked to achieve the political goals of the Bush Administration.

Yoo sights the attacks of 9/11 as the catalyst for the warrantless wiretapping program and justifies it on the grounds of the need to protect America from another attack:

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden's Afghanistan headquarters. What better way of detecting follow-up attacks? And what president -- of either political party -- wouldn't immediately order the NSA to start, so as to find and stop the attackers?

Similar to the justification for the torture of detainees in U.S. custody, Yoo sights the supposed unprecedented timeframe immediately following 9/11 and the need to adopt means that were unconventional (or in Yoo's eyes, very conventional) due to this "new" and threatening enemy. Yoo continues:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA's wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks.

[...]

In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats "are much less capable to be directed by antecedent, standing, positive laws." Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations. Only the executive can act to protect the "security and interest of the public."

Here we have the crux of Yoo's defense. He claims that the FISA law was not created during wartime and was an obsolete law that was not up-to-date for the threats that we are currently facing in the so-called "War on Terror". He also claims that the process of changing the law is too slow, so it makes sense that the executive branch is the only branch that can make these decisions to "protect the 'security and interest of the public.'"

To address the claim that FISA is in fact an "obsolete law" that was "not written with live emergency circumstances" in mind, I find it helpful to review an analysis from May 21, 2007 written by Glenn Greenwald. Greenwald has written extensively on the issue of warrantless wiretapping over the last few years and in this entry he addressed the claims made by Mike McConnell in an op-ed that the FISA bill was, in fact, obsolete.

From that entry:

In the wake of the 9/11 attacks, the Bush administration demanded a whole slew of changes to FISA which expanded the President's eavesdropping powers and which the administration claimed were necessary in order to bring FISA into the 21st Century by allowing surveillance of modern communication methods. Congress, needless to say, complied in full, and in October of 2001 -- contrary to McConnell's misleading Op-Ed -- it enacted, and the President signed, sweeping "modernizing" changes to FISA.

and what did President Bush say at the signing ceremony in October, 2001?:

The changes, effective today, will help counter a threat like no other our Nation has ever faced. . . .

We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. . .

Yoo's claim, that the FISA legislation was "obsolete" and not "written with an international terrorist organization in mind", is simply not accurate. As shown above, the FISA legislation was amended shortly after 9/11 in order to give President Bush the tools to (in Bush's words) "meet the technological challenges posed by this proliferation of communications technology". Yoo is simply advancing the false claim that the FISA legislation had not been amended since 1978.

Also important to point out is that Congress explicitly proposed amendments to the FISA legislation in order to expand its scope and make in easier for warrants to be obtained, in 2002. The Bush Administration rejected them. Greenwald again:

...it is also critical to recall that the administration had multiple opportunities since those post-9/11 changes to expand the scope of FISA, and it was the administration which refused those changes on the ground that they were unnecessary. In 2002, multiple Senators sought to make it easier to obtain FISA warrants, and the Bush administration opposed those changes, insisting that it already had sufficient eavesdropping powers. And all throughout last year, Senators such as Diane Feinstein and Arlen Specter proposed endless FISA amendments to expand the scope of government eavesdropping (in response to claims that FISA was too narrow), and the Bush administration was completely uninterested in all of them.

It is clear that the Administration was not simply trying to protect the public from these "new" and never before seen threats, but their goal was to expand executive power and authority no matter what the law stated. Not only were they undertaking these actions, but they were doing it in secret and lying about it. To take one example, in April, 2004 Bush stated:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

The above can be interpreted in no other way, except that it is a lie.

In his piece, Yoo goes on to cite FDR eavesdropping on domestic and foreign communications (before Pearl Harbor and with a lack of Congressional authority) to justify the actions of President Bush. Interesting how Yoo does not address that the FISA legislation was passed over thirty years after this took place and was passed in order to protect people from being spied upon without just cause. Yoo's underlying point in citing the FDR example, as well as other examples that he references, is to make the point that during wartime the Presidential responsibility to protect the population Constitutionally supersedes all else. In his concluding paragraph Yoo states:

Our Constitution created a presidency whose function is to protect the nation from attack. Gathering intelligence -- including intercepting enemy communications -- has long been a key aspect of war. Our military and intelligence agencies cannot attack or defend the nation unless they know where to aim. As we confront terrorists who remain intent on attacking the U.S., using weapons we cannot anticipate, we should be skeptical of those who insist that we radically change the way this country has always made war.

Yoo's argument essentially boils down to that during wartime, Presidential authority is supreme and the decisions that the President makes to protect the population, are protected even if his actions would break the law during times of peace...after all, FDR did it. Yoo's response does not clear things up or provide any kind of more rational explanation on this issue. Yoo's continued defense of unchecked executive power (especially during wartime) only continues to enforce the criticisms that he gave opinions to meet political goals and that relied on a warped sense of the law. I will be interested to see how his Wall Street Journal piece is perceived around the media and blogosphere.



This piece is crossposted here.

More on Jim Comey's Leaked emails and the Upcoming OPR Report

Dan Froomkin has a post today that is pretty thorough and does a good job of laying out some of the latest developments in the conversation surrounding torture. After these emails were leaked to the New York Times the other day, the story continues to become clear. From Froomkin's post:

Three newly-disclosed Justice Department e-mails thoroughly vindicate the most cynical suspicions about how former vice president Dick Cheney bent ostensibly independent Justice Department lawyers to his will and forced them to manufacture legal cover for his torture policies.

The e-mails, which date back to a 2005 re-evaluation of interrogation policies, were written by then-deputy attorney general James Comey. They reveal Cheney's extraordinary influence over then-attorney general Alberto Gonzales and key lieutenants -- including top officials in the department's Office of Legal Counsel (OLC).

[...]

In his April 27 e-mail, Comey describes telling Gonzales directly about his "grave reservations" about the second memo. Gonzales's response? "The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP's request and the AG had promised they would be ready early this week."

Comey also notes that OLC lawyer Patrick Philbin had previously reported that then-acting OLC director Steve Bradbury "was getting constant similar pressure from [White House counsel] Harriet Miers and [Cheney counsel] David Addington to produce the opinions." Comey adds: "Parenthetically, I have previously expressed my worry that having Steve as 'Acting' -- and wanting the job -- would make his susceptible to just this kind of pressure."

By the end of the April 27 e-mail it appears that Gonzales has agreed to give Comey a chance to alter the second memo. But in the April 28 e-mail, Comey recounts a conversation with Ullyot, Gonzales's chief of staff, in which it becomes clear that Comey has been outflanked by Cheney and that the memo will go out as written.

As more emails and documents are released, it is becoming more and more clear that there was a severe amount of pressure applied by the White House onto the AG's office and down onto other employees of DOJ, including employees of the OLC. After John Ashcroft's departure as Attorney General it appears as if any resistance to the pressure that was being applied by the Vice President, disappeared. Alberto Gonzales merely passed that pressure on to his employees at DOJ in order to get these torture memos released.

Scott Horton weighs in:

This highlights a key question hovering over Gonzales’s term as attorney general: to what extent were his actions dictated to him by political figures in the White House? A special prosecutor, Nora Dannehy, is now studying aspects of that question and is believed to have Gonzales squarely in her sights.

Another aspect that surrounds the leaking of these emails is the New York Times article that accompanied their release. I have already posted an item about Glenn Greenwald's excellent breakdown of why the NYT article misrepresents the information contained within these emails, but Scott Horton makes another couple of important points:

But beyond this, some actions speak louder than documents, and in this case it is remarkable that a number of the dissenters, led by Comey and Goldsmith, reacted to the reconfirmation of the Bush torture program by leaving the Justice Department. That strikes me as a very important fact, which the Times writers don’t find worth a mention. Second, this information almost certainly came to the Times from John Yoo, Steven G. Bradbury, or Jay Bybee, who are the targets of an internal Justice Department ethics probe, or from persons close to them. Each of these individuals had access to the complete report and the documents it assembled. At the order of Michael B. Mukasey, who did everything in his power to spike and influence the report, they were to receive copies of the entire report in order to comment on it; indeed, again at Mukasey’s behest, Bradbury was even authorized to influence the report from inside the team that assembled it. The torture memo writers are eager to show that their views were in fact widely shared by lawyers inside the Justice Department and thus were not aberrational. It’s almost certain that one of them decided selectively to leak documents that would help make their case, in the process pushing the line they wanted the Times to run with. Shane and Johnston swallowed their line uncritically. In fact, there is a such a failure of critical detachment in the Times reporting that bad journalistic practice hardly begins to explain it. Rather, it looks like the reporters are consciously cultivating their sources by giving their story a furious spin that the torture camp will love.

In addition, the Office of Professional Responsibility is slated to release a report later this summer in which they examine the methods by which former OLC lawyers, John Yoo, Jay Bybee, and Steven Bradbury came to their conclusions in the torture memos. In a separate piece posted on the Daily Beast in early May, Scott Horton cites sources as saying:

The report sharply criticizes the quality of the legal work contained in the memoranda, and suggests that the lawyers who wrote these memos failed to exercise the independent judgment and professionalism that they owed their clients. The report suggests that some of the memos may have been created as part of an after-the-fact attempt to provide legal cover for conduct that was recognized as potentially criminal. The report also recommends that at least two of the memo writers be referred to bar associations for disciplinary measures—which might include a reprimand, suspension, or disbarment. Bar disciplinary panels rarely mete out severe sanctions to lawyers for mistakes made in connection with legal opinions, but they also tend to give deference to conclusions made by the Justice Department when it is reviewing its own personnel.

Should it come as any surprise that Jim Comey's emails were leaked with the spin that he acknowledged that the torture memos were legal in order to pre-empt the OPR report that is going to come out later this summer? Surely those who defend Yoo, Bradbury, and Bybee would have much to gain from making this argument. It should also come as no surprise that the New York Times repeated this type of spin without focusing on the bigger picture and critically reporting on the contents of these emails.

Yoo Defends His Actions in Interview

John Yoo recently gave an interview to the Orange County Register discussing, in general terms, some of the decisions he made during his tenure with the Bush Administration and providing some thinly layered defenses of some of the legal memos that he crafted. It must be noted that he did not discuss and was not asked about the newly released memos that I have written about in my previous entries and this is presumably because this interview was conducted before these memos were made public.

Yoo does talk about how he came to be a "distinguished visiting professor" at Chapman University School of Law, how he has been received at Berkeley, and the crafting of various memos that gave President Bush vastly expanded executive power. Some samples from the interview:

The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions. You don't have the luxury to research every single thing and that's accelerated in war time. You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure (he laughs), is that in hindsight, it's easier to say, "Here's what I would have done." But when you're in the government, at the time you make the decision, you don't have that kind of luxury.

Q. Is there anything you would have done differently?
A. These memos I wrote were not for public consumption. They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions
differently.

Q. Is it normal practice to give just the straight opinion?
A. I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, "What are people going to think of me?" Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do.

Q. The Department of Justice is looking into the legality of some of the memos you wrote. Is this a possible cost?
A. I wish they weren't doing it, but I understand why they are. It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we've never had to think about before. We didn't seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there's going to be a lot of people who are upset with your decision. If Bush had done
nothing, there would be a lot of people upset with his decision, too. I understood that while we were doing it, there were going to be people who were critical. I can't go farther into it, because it's still going on right now. I'm not trying to escape responsibility for my decisions. I have to wait and see what they say.

John Balkin observes:

These 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 decision making, 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.

This is precisely what Yoo and others argued after 9/11, that the President could act as he pleased and could not be bound by laws, treaties, and even the Constitution. Yoo wouldn't have made his legal decisions differently, but would have added more "polish" to better explain that decision. In John Yoo's world, just because he wrote opinions which supposedly gave the Bush Administration these expanded powers, didn't mean that they had to use it. What on Earth would detract them from using these powers (that they were obviously interested in pursuing) if they had the advice that they could do so without being bound by documents like the Constitution? How ridiculous.

More memos and opinions need to be released and see the light of day so that investigations and prosecutions can take place. This type of assault on the rule of law and on the very foundation of this country cannot just be chalked up to "moving forward".

DOJ Releases More Controversial Opinions Penned by John Yoo

The Department of Justice has released nine legal opinions that were previously kept secret under the Bush Administration. A few of these memos were written by John Yoo, now infamous for writing the "torture memos", and are a very interesting look into the type of expanded power that the Bush Administration was interested in pursuing.

In a memo dated October 23, 2001, Yoo (along with Alberto Gonzales and William Haynes) argue:

"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...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."

Yoo also made comments on the President's power to suspend elements of the First Amendment during times of war:

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

These revelations are further documentation of the Bush Administration's attempt to find legal justification for vastly expanding the role of the President, even if it meant suspending or taking action that did not align with the Constitution. Scott Horton writes:

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.
We need to know how the memo was used. Bradbury suggests it was not much relied upon; I don’t believe that for a second. Moreover Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it.
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.

We do not simply need a "Truth Commission" but it is becoming clearer by the day that we need criminal investigations to get to the bottom of this and hold Bush Administration officials accountable. More on this to come.

Fixing Legal Policy Around Political Objectives

There is a continued buzz over the results of an investigation by H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility, into the legal advice that the Bush Administration received on policies of torture. The Public Record is quoting "legals sources familiar with the case" in saying that the results of this investigation are "damning" and that there was "misconduct" on the part of John Yoo and other lawyers who were apart of the Office of Legal Council during the Bush Administration.

The issue here is not merely that Yoo and others gave the Bush Administration bad legal advice, but that their opinions were not in good faith and were actually fixed around the policy goals that the Administration wanted to accomplish. This report and the conclusions that it reaches, could be very destructive for the Bush Administration's continued defense of its torture policies. The Bush Administration has continually pointed to the legal opinions that they received in the form of the Yoo and Bybee memos in justifying the legality of their policies on torture, but if these legal opinions were indeed fixed around political objectives, then this justification (which was shaky to begin with) will disintegrate.

From the article:

One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.

The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.

The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.

While the question of why Former Attorney General Mukasey decided to suppress this report needs to be answered, it is interesting to take into account John Yoo's involvement in White House policy meetings at the same time that he was forming the legal opinions that allowed for said policies to be implemented. It is clear, as The Public Record points out, that Yoo's own writings provide evidence of his involvement in the shaping of policy. Perhaps two of the most interesting lines from Yoo's book War by Other Means state:

“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights...is infeasible.”

“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders.”

These lines indicate not only Yoo's communication with those who believed that the Geneva Conventions should not be applied, but they indicate that Yoo's involvement with policy makers translated into legal results that allowed for this very policy to become justified. With this "damning" of a report, it becomes harder for both the Bush Administration to justify their actions on torture and for the Obama Administration to ignore the need for punishment of the arrogant law-breaking from the last eight years.