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".

Obama on Executive Power

Glenn Greenwald has two blog posts, this one from today and this one from the weekend, that focus on the Obama Administration's attempts to uphold the Bush Administration's far-reaching power of the Executive Branch. From Greenwald's piece today:

As I detailed over the weekend, the Obama administration -- in the case brought by two American lawyers and their charity-client claiming that their conversations were illegally intercepted by the Bush administration -- has announced that it intends to try to appeal, yet again, in order to prevent the court from hearing the lawsuit. On Friday, the Ninth Circuit Court of Appeals rejected Obama's request to stay the District Judge's Order, which had held that it will review a classified document that the plaintiffs claim proves they were subjected to the illegal eavesdropping (thus conferring standing on the plaintiffs to challenge the legality of Bush's NSA program), and also ordered the Obama administration to provide security clearances to the plaintiffs' lawyers so that they could review the document as well. The Obama DOJ immediately announced they intend to try to
appeal again -- the third time, since Obama's Inauguration, that the Obama DOJ
will try to argue before a court that the case should not heard at all.

The Obama Administration is arguing that only the Executive Branch should have the (lone) power to decide whether classified documents can be used in a court proceeding. They are also arguing that once the President makes a decision on this, that courts do not have the authority to challenge this decision. As Greenwald points out, under this argument, the following situation could have the potential to happen:

- The President breaks the law
- The President decides that the information about the lawbreaking is classified
- The President orders that the classified information cannot be used in court
- This decision can not be reviewed by courts

I am in agreement that this is straight out of the Bush Administration's "Executive Power" playbook. From Greenwald:

As Marcy Wheeler documents in detail, the Obama DOJ is now spouting the Cheney/Addington view of government in its purest and most radical expression. Citing lengthy excepts from the Obama DOJ's brief filed on Friday following its loss in the appeals court -- a brief that could easily have been written by John Yoo or David Addington in its distinctly un-American and anti-constitutional theories purporting to vest unchallengeable, unreviewable power in the President...

Cheney Spouts Off on Support for Torture, Executive Power, and Illegally Wiretapping Americans

Vice President Dick Cheney has been making several appearances in the corporate media as of late, giving interviews to ABC and FOX over the last few days, in which he has been quite frank about many aspects of the last eight years. For example, in these interviews Cheney has revealed:

1. That as a "general principle", any decisions the President makes during wartime are legal.

2. The interrogation of Kahlid Sheikh Mohammed, which included repeatedly waterboarding him, was approved through the Vice President's Office, that he does not regret that decision, and that he supports waterboarding as a tactic used by America.

3. That he himself told leading Democratic members of the Congress, in detail, about the NSA warrantless wiretapping program and that the Democrats agreed that this program should proceed and be kept secret.

These items are not necessarily ground-breaking or "new", but the open way in which Cheney confirms what many have been saying for years now is a clear indication that this Administration has operated and continues to operate under the notion that they are above the law. Support for a Nixonesque view of Executive power, support for torture, and support for illegally listening in on the phone conversations of Americans are not the result of some long investigative report or inquiry, rather this is the admission of the current Vice President during nationally televised interviews. Is it any clearer that this country needs to hold these officials within the Administration accountable and recommit itself to the rule of law? Cheney in his own words:








In regard to this last clip about the NSA wiretapping program, I think that Glenn Greenwald's entry over at Salon hits the nail on the head regarding the complicity of the Democrats in Congress in some of the illegal activity over the last eight years and just how far Washington has strayed from the basic principles of the law:

Either way, Cheney's general claim is as clear as it is incriminating. According to him, key Congressional Democrats were told about the illegal NSA spying program in detail, and they not only actively approved of it, but far beyond that, they insisted that no Congressional authorization should even be sought, based on what was always the patently inane claim that to discuss the fact that the administration was eavesdropping on our conversations without warrants (rather than with warrants, as the law required) would be to reveal our secrets -- "our playbook" -- to Al Qaeda. It is certainly true that Dick Cheney is not exactly the most scrupulously honest public servant around. In fact, he's almost certainly the opposite. Still, what he said yesterday was merely an expanded and more detailed version of what has previously been publicly reported and, to some degree, confirmed about the knowledge and support of Democratic
leaders for the NSA program.

Cheney Admits Role in Approving Torture: It's Time for a Recommitment to the Rule of Law

In follow-up to my blog entry yesterday, In an interview with ABC News Dick Cheney has admitted to authorizing torture techniques and continues to justify their use.



Cheney also went on to advocate keeping Guantanamo Bay open indefinitely and continues to justify the invasion of Iraq despite the fact that the Administration was dead wrong about Saddam Hussein having stockpiles of Weapons of Mass Destruction. In fact, Cheney even brushed aside the notion that the accuracy of their pre-war claims even matter anymore. This is the first time that Vice President Cheney has admitted such an active role in approving these so-call "enhanced interrogation techniques" and his stark admission comes just days after the Senate Armed Services Committee released their report finding that senior officials within the Bush Administration are directly responsible for the abuse of detainees in U.S. custody. What is described in the report (thought not explicitly cited as such) are war crimes and what Cheney admits to in his interview with ABC, are war crimes. The only question left at this juncture is what (if any) actions an Obama Administration will take to restore the respect for the rule of law.

Cheney's arrogance and stark admissions are done because he knows that the likelihood of being held to account is very small within the current Washington climate. This is the same arrogance that has led the Bush Administration to expand the powers of the Executive Branch of the government to unprecedented levels. As rumors continue to float around the country that once President-elect Obama takes office he will close Guantanamo, it is necessary for Obama to simultaneously announce a recommitment to the rule of law. This recommitment needs to emphasize that no one, not the President and not any elected or appointed official, is above the law. In accordance with this recommitment, Obama should take the necessary steps to convene either an independent panel or a special prosecutor to investigate lawbreaking that has occurred over the last eight years. It is necessary to stop the expansion of power within the Executive Branch and it is necessary to restore this country's commitment to the basic principles of law that this country should adhere to.

Upholding the President's Authority to Hold American Citizens Indefinitely and Without Charge

I wonder how many Americans would agree with the following statement:

The President should have the power to designate any American citizen that he sees fit, an "enemy combatant" and that citizen can then be held without charge or trial for an indefinite period of time.

It seems to me that this type of dictatorial power fundamentally goes against even the basic protections of the Constitution. The Fouth Circuit Appellate Court however, ruled 5-4 on Tuesday that the President should have this power.

The case that the Fourth Circuit was deciding, involved a man named Ali Saleh Kahlah al-Marri. al-Marri was a citizen of Qatar in 2001 when he was legally in the United States on a student visa. Al-Marri was attending classes at Bradley University in pursuit of a graduate degree in computer science. (al-Marri earned his undergraduate degree from Bradley a decade earlier.) Al-Marri was living in Peoria, Illinois shortly after 9/11 when he was arrested as a material witness and charged with credit card fraud as well as making false statements as a part of a 9/11 investigation. In June of 2003, al-Marri was preparing for his criminal trial which was to start a month later, when President Bush declared him an enemy combatant and ordered the US military to seize him and place him in a navy brig in South Carolina. This is where al-Marri has remained for the past five years, much of the time in solitary confinement.

The ruling by the appellate court on Tuesday, upheld the President's ability to detain al-Marri without charge much like the similar ruling that was issued against Jose Padilla in 2005. The difference between Padilla's ruling and al-Marri's ruling is that al-Marri was never accused of fighting US troops or even going to Afghanistan, he was just accused by President Bush of being "involved" in a terrorist plot. It is stated in the ruling:

If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings 'for the duration of relevant hostilities'

Currently, the "relevant hostilities" that are referenced, refer to the so-called "War On Terror" which the Administration has claimed, could go on indefinitely.

This ruling amounts to the President having the power to hold any American citizen indefinitely and without charge by simply signing a sheet of paper that would designate such a citizen as an "enemy combatant". This power is truly frightening and should strike a chord within anyone who has respect for the very basic laws that have held this country together and kept America from slipping towards authoritarian rule. Today we find ourselves with a government who has such a warped view of executive power, that an Attorney General has stated that the President is his client.

This ruling further demonstrates the disrespect for the Constitution that this Administration continues to show and how those surrounding the Administration continue to defend such a view.