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.

The CIA Destroyed 92 Tapes of Interrogations

It just came down not too long ago that the CIA has admitted to destroying 92 tapes of interrogations that contain torture. From the AP story:

New documents show the CIA destroyed nearly 100 tapes of terror interrogations, far more than has previously been acknowledged. The revelation Monday comes as a criminal prosecutor is wrapping up his investigation in the matter. The acknowledgment of dozens of destroyed tapes came in a letter filed by government lawyers in New York, where the American Civil Liberties Union has filed a lawsuit seeking more details of terror interrogation programs. "The CIA can now identify the number of videotapes that were destroyed," said the letter by Acting U.S. Attorney Lev Dassin. "Ninety two videotapes were destroyed." The tapes became a contentious issue in the trial of Sept. 11 conspirator Zacarias Moussaoui, after prosecutors initially claimed no such recordings existed, then acknowledged two videotapes and one audiotape had been made. The letter, dated March 2 to Judge Alvin Hellerstein, says the CIA is now gathering more details for the lawsuit,
including a list of the destroyed records, any secondary accounts that describe
the destroyed contents, and the identities of those who may have viewed or
possessed the recordings before they were destroyed.

Harper's Scott Horton writes:

This news makes the case for an independent commission of inquiry still more compelling. It also builds the case for a special prosecutor to look into matters surrounding torture. The new prosecutor must be a person of stature and gravity on a par with the attorney general himself, must be seen as above the political fray, and must be given the resources and manpower to fully investigate the affair–including the increasingly obvious role played by the Justice Department. There is one inescapable conclusion to draw from the destruction of evidence here: those who destroyed it fully appreciated it could be offered up as evidence of crimes in which they were implicated in a future prosecution.

The tension continues to build surround the central issue of the Bush Administration's interrogation program. Something has to give eventually.

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...

Pelosi Endorses Potential Criminal Investigations

Rachel Maddow sat down with Nancy Pelosi the other night for a comprehensive interview:

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A few items of note, specifically on the sections of the interview that focus around investigating potential criminal actions by the Bush Administration:

1. Pelosi endorses the idea of Senator Leahy's proposed "Truth Commission" to investigate past actions by the Bush Administration, but is concerned about any proposed immunity for officials that agree to testify.

- I fully agree with Pelosi on this point. Exchanging immunity for testimony, while potentially helpful in bringing out elements of the truth, would impede any meaningful attempt at holding those who broke the law accountable. The goal needs to be more than simply a "truth commission", but a serious attempt to investigate the lawbreaking of the past eight years.

2. If the Inspector General report comes back with the indication that there was criminal wrong-doing, Pelosi would support moving forward with additional action against former Bush Administration officials.

- It is reassuring to hear the Speaker of the House come out and directly state that she would support these actions. While President Obama still remains non-committal on this issue, stating that while no one is above the law he prefers to look forward, members of Congress will need to lay the groundwork and keep the pressure on Obama to move forward with these investigations.

3. Maddow does a fantastic job of following up this line of questioning with confronting Pelosi with the fact that she, and other Democrats, had been briefed on these torture programs in 2001 and 2002. Maddow asks Pelosi if it is problematic that she did not raise these concerns over torture publicly after she was briefed. Pelosi then claims that she (and others) were never made aware that the government was actually using these so-called "enhanced interrogation techniques".

Maddow continues to (rightly) push Pelosi on this point because Pelosi's presence in meetings that discussed these techniques could indicate that she and other Democrats not only knew of these programs but were complicit in approving torture. Maddow asks Pelosi if the Administration gave the inference that they believed that waterboarding was now legal. Pelosi says that they may have given that inference, but that she never knew it had been implemented.

This admission is potentially problematic. If Pelosi and others knew that the Administration viewed techniques like waterboarding as legal, what would stop them from using such techniques. Just because the Bush Administration didn't come out and tell Pelosi that they were torturing doesn't mean that it is a surprise that they did. After all, if they told Pelosi and other Democrats that they believed these actions to be legal, why would they not use them? Pelosi is adamant that she couldn't talk about anything that was disclosed in the meetings and therefore could not publicly object to these policies.

Pelosi's statements are difficult to verify at this point considering so much is still secret and I still have my doubts that Democrats were completely in the dark as to what was going on. The new information that this interview does bring out, is that Pelosi is willing to endorse investigations into criminal wrong-doing by the Bush Administration and does not believe that anything that she and/or other Democrats knew, will get in the way of these investigations.

The Continued Need for Expanded Racial Discourse

Since the election of Barack Obama into this nation's highest office, there has been widespread praise for how far the United States of America has come in regard to race relations. After all, not even half a century ago, our black brothers and sisters were fighting against seemingly insurmountable odds in order to achieve equality. It still pains us to watch the old footage of black members of society being beaten, attacked by police dogs, and sprayed with fire hoses. These images, along with the images of peaceful protests singing "We Shall Overcome" cannot help but remind us not only of how far we have come, but of the power of a determined people to create social change.

While a black man ascending into the office of President indicates measured progress for race relations, it does not automatically mean that issues of race and racism are no longer relevant or worth discussing. Isolated incidents of achievement are not always indicative of widespread societal progress. One only needs to turn back the clock a mere three and a half years and remember the scenes that played out in New Orleans duirng Hurricane Katrina for a reminder of why race issues should continue to be discussed in the twenty-first century.

Attorney General Eric Holder recently gave a speech in honor of Black History Month and used the opportunity to encourage people to have an open dialogue about race. Holder said that we are "essentially a nation of cowards" in our collective failure of engaging in meaningful discussions on race related issues. Holder continued:

Our history has demonstrated that the vast majority of Americans are uncomfortable with, and would like to not have to deal with, racial matters and that is why those, black or white, elected or self-appointed, who promise relief in easy, quick solutions, no matter how divisive, are embraced. We are then free to retreat to our race protected cocoons where much is comfortable and where progress is not really made. If we allow this attitude to persist in the face of the most significant demographic changes that this nation has ever confronted-and remember, there will be no majority race in America in about fifty years-the coming diversity that could be such a powerful, positive force will, instead, become a reason for stagnation and polarization.

With President Obama now in office we see people retreating into their "race protected cocoons". Racial disparity and racial inequality have not just magically disappeared, but rather it is the chance for meaningful discourse which has fallen into old patterns and continues to fade into the background. What a fantastic opportunity this country currently has to speak to each other about issues of race now that we have witnessed the election of our first black President. What follows should not be the assumption that all has been overcome, but rather a dialogue on how we can continue to move forward. Communication and emerging from our protected cocoons is the only way that we can effectively continue this all important progression on these issues.

Recently, the much publicized editorial cartoon printed by The New York Post, touched off a firestorm of criticism. The cartoon (linked to above) shows two white police officers standing over a bullet-ridden and bloodied chimp with their guns smoking. One officer is saying to the other: "They'll have to find someone else to write the next stimulus bill". Rev. Al Sharpton was quick to criticize the cartoon as racist for the implication that the dead chimpanzee could be interpreted to be President Obama. The Post initially issued a statement defending the cartoon and attacking "those in the media and in public life who have had differences with the Post in the past". "To them," the statement read, "no apology is due." This led to continued demonstrations outside the Post's offices and concluded with an apology from Rupert Murdoch, CEO of NewsCorp.

This incident got a lot of sensational coverage in the media and set off debates between pundits who argued whether or not the cartoon was racist. Whether the chimpanzee was initially intended to represent Obama is not necessarily the central issue. A more productive discussion would have stretched beyond the surface and could have examined the history of likening African-Americans to monkeys and chimpanzees. Now, with Murdoch's apology and the sensational aspect of this story fading, we will once again shelve the discussion of this issue until the next controversy erupts. This pattern, one we have seen for years on the issue of race, is not a recipe for progress, but like Eric Holder says, a reason for stagnation.

While the recent controversy over the Post's editorial cartoon shows us an example of the continued failure of discussing race in a meaningful way, there are still some who feel that it is appropriate to engage in behavior that directly works against progress. Jim Schifrin is the publisher of The Whistleblower (an internet based alternative "news" source for Cincinnati) and has come under fire recently for blatantly racist language and images as well as assassination jokes that he has posted. As you can read in other stories posted at The Cincinnati Beacon, many area politicians have repudiated this racist language.

In the January 17th edition of The Whistleblower Schifrin made mention of sharing Obama jokes with Hamilton County Prosecutor Joe Deters:

Q: What do Abe Lincoln, JFK, Martin Luther King Jr. and Obama have in common? A: Nothing, yet!

Q: What's the difference between Sarah Palin naked and Michelle Obama naked?
A: Playboy and National Geographic!

BREAKING NEWS: “Hail to the Chief” is being replaced with the theme song from "The Jefferson's"!

Finally, everybody—just relax. When was the last time you saw an black guy keep
a job for four years?

In the February 20th edition of The Whistleblower Schifrin has Obama's face pasted over the face of a monkey and also published this result of a "limerick competition":

The best part of dead Presidents' Day
Is that at some point this one will also be that way.
I don't wish him bad luck
(Though I really don't give a good ... uh ... "darn")
Just call me a nasty old Republican ofay!

and in the February 21st edition of The Whistleblower, Schifrin posted a photo that likens Michelle Obama to a monkey. It is racist actions like these that run directly contrary to the kind of progress that Eric Holder talks about in his speech. There is nothing about the publication of such images and so-called jokes that allow us to have an intelligent and productive conversation about serious race related issues. The fact that there are still Jim Schifrin's of the world out there should indicate not only that racism is still alive and well, but that we need to take every opportunity that we are given to have intellectual discussions that will actual move this country forward instead of backward. After all, as Eric Holder said:

As I indicated before, the artificial device that is Black History month is a perfect vehicle for the beginnings of such a dialogue. And so I urge all of you to use the opportunity of this month to talk with your friends and co-workers on the other side of the divide about racial matters. In this way we can hasten the day when we truly become one America.

Perhaps Jim Schifrin would like to take Eric Holder's challenge and discuss (in interview format) his use of assassination jokes, racist jokes, and likening monkeys to the Obamas. (If he is interested in such an interview, he should let me know.) After all, lobbing racist insults is an easy thing to do, but tackling these issues in a meaningful manner is another matter entirely.

Though we have made great strides with race, it is evident by the examples that I have listed above, that we still have a long way to come. As Eric Holder states in his speech, "to respect one another, we must have a basic understanding of each other" . Communication and dialogue is the only way that we can begin to understand each other and understand the full history of black America. "The history of black America and the history of this nation are inextricably tied to each other", Holder states, and until we start to talk with each other and understand this, we will see more stagnation and less progression.


This article can also be found at: http://www.cincinnatibeacon.com/

Gov. Bobby Jindal's Awful Repsonse to Obama's Speech

There has been a good amount of reaction to both President Obama's address to the nation last evening and also the response that was given by Gov. Bobby Jindal (R-LA). Jindal's response can be viewed below:

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I would like to meet whoever it is that thought this type of speech would be a good idea. The delivery is poor, Jindal is talking down to his audience as if they are in grade school, and he merely recycles the same Republican talking points that we have seen articulated for the last few decades. There are some surprising new arguments, like ridiculously using Hurricane Katrina as a positive example of restructuring the schooling system, but the majority of the speech plays the same old tune. From stirring up patriotism ("Americans can do anything") to using the same old "Republicans believe in the people, Democrats believe in the government", to telling stories with an overly simplistic message, it was one of the poorest rebuttals that I have ever seen.

David Brooks says:

..to come up at this moment in history with a stale "government is the problem," "we can't trust the federal government" - it's just a disaster for the Republican Party. The country is in a panic right now. They may not like the way the Democrats have passed the stimulus bill, but that idea that we're just gonna - that government is going to have no role, the federal government has no role in this, that - In a moment when only the federal government is actually big enough to do stuff, to just ignore all that and just say "government is the problem, corruption, earmarks, wasteful spending," it's just a form of nihilism. It's just not where the country is, it's not where the future of the country is. There's an intra-Republican debate. Some people say the Republican Party lost its way because they got too moderate. Some people say they got too weird or too conservative. He thinks they got too moderate, and so he's making that case. I think it's insane, and I just think it's a disaster for the party. I just think it's unfortunate right now.

The fact that the Republicans chose this type of message as a response to President Obama clearly shows the dysfunctional position that they are currently in. It is almost as if they set out to produce a GOP recruitment video, but forgot about (or omitted) everything that has happened over the last few decades.

Gather the Torches...

It's no surprise to hear the continued criticisms of President Obama from the right regarding his being a "socialist". After all, if being a "tax and spend liberal" isn't enough then I guess you could always through the dreaded "socialist" label around to get people riled up. As we saw during the campaign season, this type of language could be expected, but I have seen a recent trend of hyperbole and rhetoric that leaves a different taste in my mouth and I see that Digby and Andrew Sullivan have also picked up on this.

Alan Keyes recently said:

"Obama is a radical communist and I think it is becoming clear. That is what I told people in Illinois and now everybody realizes it is coming true. He is going to destroy this country and we are either going to stop him or the United States of America is going to cease to exist."

This may seem ridiculous at first, but the language of "either we stop Obama or America will not exist" is a little alarming and not isolated to Keyes. Rush Limbaugh recently stated:

RUSH: At this point, at this point, Gretchen, I don't care about the "why." They're not going to leave; they're trying to control it. At this point, the only thing is: They. Must. Be. Stopped.

CALLER: I agree, and what can you do, Rush?

RUSH: Within the confines of our Constitution and the political arena of ideas, they must be stopped. I don't care why they see this country the way they see it. I don't care why a murderer does it. I don't care why a rapist does it. I don't care why this Muslim guy off-ed his wife's head. The NOW gang is out there saying (paraphrased), "Nah, that's not domestic violence. That's just..." What did they call it? "It's a cultural thing, an 'honor killing.' This woman was going to divorce him, and that's against the law. That's his diversity." You know, I don't care. I don't care why anymore. If I figure it out I'll be glad to tell you because it's interesting to know, but it doesn't matter in terms of defeating them.

Limbaugh did mention that Obama should be stopped "within the confines of our Constitution", but if this the type of rhetoric that is being whipped up against Obama only one month into his Presidency, you can only imagine the road that we are headed down over the next four years.