The OLC Opinion Eliminating the 4th Amendment (and "Justifying" the Warrantless Wiretap Program)
Christy linked to HJC’s report on the Imperial Presidency earlier.
I’ll have a lot more to say about it. But for the moment I wanted to point to details it includes on the October 23, 2001 OLC opinion eliminating the 4th Amendment we’ve been looking for (this is the memo cited in Yoo’s Torture Memo).
On page 74 it describes the memo:
On October 23, 2001, Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty in the Department of Justice’s Office of Legal Counsel (OLC) prepared a memorandum entitled: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”291 This unclassified memorandum suggests broad power of the president as Commander in Chief to use military force inside the United States, contemplating even seizure and detention of United States citizens (or lawfully admitted aliens) in some circumstances. As such, the memorandum – though it does not squarely address detention policy — is consistent with the September 25, 2001, War Powers Memorandum which claimed for the president domestic war powers, anticipates the assertions of presidential power in the domestic detention context just a few months later, and anticipates the November 2001 conclusion that the president has the power to subject United States citizens to military commissions.
The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.
Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”293 [my emphasis]
Then another description appears in footnote 1577:
Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense ("DOD"), from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23,2001). – Committee staff have reviewed this unclassified memorandum, which contains extraordinary assertions of executive power and appears deeply flawed in its legal analysis. The memo relies on odd precedents, such as a 1933 decision of the New Mexico supreme court, while unhelpful precedents of seemingly greater weight – such as those discussing legal principles developed during the Civil War era involving non-battlefield actions – are dismissed in footnotes. The memo focuses on a startling hypothetical example involving a U.S. military commander seizing an apartment building in a major American city and detaining and interrogating every person found inside. The Department has claimed that this memo does not reflect current OLC thinking, but it is not clear if it has been formally withdrawn or revised. There is no excuse, moreover, for the Administration’s refusal to make this memorandum public.[my emphasis]
I think the emphasis on physical search here is a bit of a red herring. Check out how that hypothetical scenario reads when you replace "apartment building" with "email server."
The memorandum also contains extended discussion of a hypothetical example which posits that the NSA military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden messages inside an email server and which may possess information about weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the circuits, collect all the emails found inside, and then read them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement.
We know, after all, that this opinion was included in those Stephen Bradbury said had formed the basis for the warrantless wiretap program, so we know BushCo used this logic when designing its warrantless wiretap program.
Call me crazy, but I’m betting money that this little exercise in abolishing the Fourth Amendment is precisely the logic the Administration used for collecting and reading all the telecom signals in this country. It "justifies" unwarranted searches without probable cause, the detention of everyone residing in a particular space whether or not they have a demonstrated tie to the alleged terrorist, and it claims you can use information gathered from this warrantless search for criminal prosecution. That is–it "justifies" everything that is unjustifiable in the warrantless wiretap program.
I’m betting equal money that this is the stuff that made Jim Comey’s head pop off when he learned about it in 2003 and 2004.
That does seem to be a high crime coming at number 4.
Sounds like it.
I think we’ve spec’d on this before, but it helps to add in the info that the 45 day sign offs were apparently military orders, according to one of the more recent reports (can’t remember when or from whom, but it really struck me to see it acknowledged in print.
Once again, for the record, Ex Parte Milligan specifically addresses the issue of military domestic suspension of the 4th and specifically holds it to be unConstitutional. The Philbin/Yoo hoped for take that “their” court would overrule Milligan was pretty well dashed when Scalia wrote his Hamdi opinion, using it as a cornerstone. I wouldn’t be surprised if that opinion didn’t cost Scalia the Chief Justice slot.
Also keep in mind that this opinion isn’t just “let’s suppose” even if you ignore the wiretap issues, about which there isn’t much public info. Padilla and al-Marri show that the “let’s lock up US person in a brig while we conduct human experiments on them for years” concept was implemented, not just discussed. For that matter, with the low integrity standards of the lawyers involved in the Bush DOJ, there might have been people disappeared into summary execution situations. We know that over a hundred were blacksited, 14 turned over. We know of an “almost body” dumped off of a man implicated in the Pearl murder, and a deceased “young” torture victim dumped in an unmarked grave. Children who were last known to be under US control have disappeared. There’s no way to believe in anything any of them say.
On Comey, if his head didn’t pop off when he turned Padilla over, or when his office and Kelly turned al-Marri over, to be disappeared into torture, I’m still thinking it was more a sense of personal liability looming (the reason that Larry Thompson had to quit signing FISC applications) that made him pop.
My prior spec, based on the hints that this kind of opinion was out there, was that Addington et al made the argument that the FISC didn’t have any ability to take any action against lawyers violating the court’s firewalls, even knowingly, if they were following the orders of the President on a “military matter” like the surveillance program. So the showdown was more of a watergate-esque showdown, of do the Exec branch crew have to do what a court says, esp lawyers for the Exec branch. Addington et al wanted DOJ to go forward, knowing that the program was violating (and could not, in it’s current iteration, be kept from violating) the firewall orders. The lawyers knew the Chief Judge would know that they were knowingly violating, and they thought a big showdown over it all would have not only kept Bush from being re-elected, but also left them to the embrace of a successor adminsitration if they played against the court.
It might well have been something like the al-Harramain cases that tipped the FISC to the violations of their firewalls.
As bad as Padilla and al-Marri’s treatment was, that involved the detention of alleged terrorists.
Not the people who happened to be watching TV in their own apartment that happened to be in a building where not-probable cause said an alleged terrorist was. This would be the equivalent of detaining everyone who was on Padilla’s plane, not just Padilla.
Also, there was quite a bit of good reporting saying that it was the data collection and mining that made Comey’s head pop off. Which would be consistent with reading this–used as justification for doing so–and having your head pop off.
“Call me crazy”.
Depends what you mean by ‘crazy’. Under my definition, the folks behind this parallel universe theory of executive branch powers are a better fit.
As to definitions, most everyone here knows this, but it needs to be stated:
The space that “does not rise to the level of probable cause”, by definition, is not so much undefined, as defined by what it is not, i.e. conclusions plausibly capable of being drawn, by application of reason, from real things derived from actual observations – – which means, among other things, that whereas magic, fiction, pure rumor, weak conjecture, spite, irrational wilfulness, misconceived revenge, entirely theoretical constructs, wishfulness & the like do not qualify as probable cause, by definition they do – & I mean ALL of them do – qualify as NOT RISING to the level of probably cause, &, accordingly, all of them eligible to found executive action under this contruct.
IIRC, at least one of the footnotes in the Torture memo (which we were tearing apart last spring) included Yoo citing to an earlier memo of his which had not, as of that time, been released. I recall noting the analysis he was positing then would have negated the 4th Amendment. Also that a lawyer citing himself and his prior writings as basis for a later opinion was about the height of unprofessionalism.
If he’s done it there, I’d say it’s a near certainty he’s done it again.
That’s this memo–this is the memo he cited to.
What HJC has done (since neither they nor Leahy have been able to release it publicly yet, and not for lack of trying) was to include this description with the guts of the opinion.
Conyers has done legion work in this 400pp compilation. The klucha clash which was this particular series of mishaps inevitably augmented the classical modern Republican pushback against individual freedoms in a kind of anitMiranda pushback underway generally whenever a Republican holds the presidency, though Bush, Sr., had the New England upbringing to ingrain an aliquot of decency in that respect. The current document footnote 529, to me is the crux of the turning point. Perhaps it is because of my experience in communications as an electronic and physical phenomenon in the abstract and from engineering perspectives which have given me a dearth of surprise at the comms invasions. I doubt the modern bureaucracy is prepared to reverse these trends. But Conyers has provided a thoughtful roadmap.
Sigh … more stuff to read ….
This language exemplifies why the Bush Justice Department is such a compost pile, and why Mr. Clean Obama wants little to do with it.
The president is not the C-in-C of the United States of America or its citizenry. He is C-in-C only of federal military forces and the state militia when under the command of such federal forces. American military forces have been prohibited from engaging in domestic law enforcement activity since the Civil War.
The “reasoning” of David Addington, as regurgitated by John Yoo, involves the purposeful distortion of definitions, and the cherry picking laws to enforce or ignore based on Dick Cheney’s personal beliefs. It is using in extremis examples, proverbial and mythic “ticking bomb” scenario, and redefining them as the new “norm” for defining threats and the constitutionally legitimate responses to them. The latter necessarily involves relinquishing old rights in order to protect newly defined common interests, with only Dick Cheney determining what rights are to be sacrificed and what new interests are to be protected.
It’s an old fraud, a kind of occupation of new ground by “adverse possession”, like claiming that you own the town square because you camped on it all night or all summer without being kicked out. Actually, it’s more a William of Normandy-like conquering of an existing constitutional and legal systems by force.
Whether the new norm persists depends on it not being successfully attacked after the fact. That’s one reason the neocons are spreading the ironic meme that it is “looking back” that is illegitimate. It is what all usurpers want to avoid, lest their hold on power be questioned or overthrown. The question is whether Obama supports this new norm or whether his inherent conflict-avoidance style is being artfully hijacked to help make it so.
or whether obama wants to be c-in-c of the usa and it’s citizenry.
not saying it’s so, only that we don’t know.
Here’s one question.
The report says they STILL don’t know whether the memo has been withdrawn or not.
Are they doing that because of potential warrantless wiretap prosecutions (or, because if they withdraw it, then Mukasey can’t certify that the program was illegal)?
Mukasey won’t be able to certify that the program was “legal”? Freudian slurp or my misread?
I could easily see this being Conyer and company making darn sure that Judge Walker knows about this prior to his January 19th deadline.
7 – Padilla involved a US citizen being handed off to the military to be disappeared into torture with no trial. And this with no probable cause to believe that he was guilty of any crime, bc with some probable cause, they could have operated within the judicial system.
So you have someone, with no criminal probable cause, not just being questioned in his building – but sent of to be tortured. When you say at least it involved the “detention of alleged terrorists” you buy into the whole premise of the memo, which is that without probable cause, but with an “alleged terrorist” in the offing, everything is out the window.
I wouldn’t be at all surprised if the data mining wasn’t a big key to his reaction (and to Thompson’s before him). I think that was probably the “procedural” part that fell apart vis a vis the firewall orders. If the program was big enough and if no one at DOJ was working to coordinate that huge program against other, ongoing DOJ investigations (like the charities cases) where there were also a lot of FISC orders being applied for and used, then no one was really making sure the court’s order was being complied with – that if any entity was subject to the illegal program, FISC applications for that entity had to go to the Chief Judge only with acknowledgments that the entity was also a subject of the illegal surveillance and a strict categorization effort to prevent the illegal program info from being used in the applications.
IMO, the program was big enough and so few people were brought up to snuff at DOJ, esp on the real nuts and bolts of the operational aspects, and there were so many other DOJ investigations going on, being conducted by lawyers not briefedon the illegal program, that there wsa no way an AG or DAG or the FBI dir (all the guys who needed to sign off on the applications) had the information they needed when they made apps to know if the entities they were making the apps for were also being subjected to illegal surveillance.
It’s why I think all Comey et all really did was make the procedural aspects of ‘teh program’ be reformed so that there was enough information for the AG to comply with the court orders – nothing much more than that. I really do think that works best with the revelations about Thompson as well, that he was too afraid to sign off (he probably realized that there was no way to know for sure if the targets of the FISC orders they were trying to get were also part of the illegal program) But that’s all my spec – based on a lot of the revelations, but not with any actual knowledge of what really went on. Just a lot of distrust of men and women who hand off people for torture.
That kind of transfer to pre-trial domestic torture was directly and specifically contary to the controlling law of the land and Comey knew it when he acquiesced in it. If being personally responsible, as USA who had custody of the material witness, for handing that citizen over for torture with no trial doesn’t make your head pop, it’s hard for me to believe that illegal surveillance, absent some dimension of personal liability, would either.
But again, that’s just my opinion.
“that’s just my opinion”
I disagree with the above quote – because I agree with everything else you’ve written in the same response, as rationally-based extrapolation – as distinct from whimsy, pure conjecture etc including tin-foil-hattedness.
It all fits with what we’re led to understand led to Thomas Tamm’s increasing level of discomfort, doesn’t it?
Again, engaging in stuff that we here know but nonetheless needs to be stated, as Mary points out, the DoJ as an institution is a big, busy-busy-busy place, with everyone – or most everyone – having a lot on her or his plate, and actual demands & deadlines to attend to, some imposed by courts & rules that govern criminal & civil proceedings [which one ignores those at the risk of one’s license to practice, career & even freedom to some extent].
What it looks like is that Yoo, under the constant drum-beat of Addington [It does not appear likely any whip was required.] chose to employ some very general language in drawing the [lack of] boundaries to presidential powers, which language sat there, ready to be used by the WH to direct the CIA & the DoD & the NSA etc in driving through larger & larger megatrucks – which traffic was unknown to, vaguely known to, or known to but for various reasons also effectively tolerable to AG Ashcroft & his DAG Comey, over a period of time extending from some point in the initial panic in response to 9/11 – until the congruence of:
[a] Goldsmith’s getting up to speed with the memos & programs in place after arriving at the OLC, &
[b] Ashcroft’s Moment [being from all appearances, just about the only objectively defensible moment in his public career, perhaps tellingly coinciding with his being nearly non-sentient from disability, trauma & narcotics].
Again, we’re reviewing the bidding here: What Goldsmith saw included this language, plus a system under which the AG – Ashcroft – was certifying the legality of the activity, whatever in hell that was, at TWO ENDS: ab initio to the buggers [& other doers of things] & thereafter periodically & as the perceived ‘needs’ arose, to the FISA court – all without truly knowing whatever in hell that activity was in the first place.
[We’ve learned from Tamm, & from the reports on the kerfuffle that later AG Gonzales ‘reported’ [sort of] to the Senate Judiciary Committee, is that, at some point the fruits of that ‘whatever-the-hell-it-was/is’ activity started to show up in the material being presented by a different arm of the DoJ to the FISA court.]
Where I would depart from Ms E Wheel, & lean more to the scenario you’ve described, is that it’s not necessary for Comey et al to have derived from all they had to know that something on the scale of a Congressionally-verboten Total Information Awareness program was in place; or even that the NSA was now hoovering up phone conversations & emails willy-nilly without any distinctions whatsoever.
All that would be necessary to bring about the Ashcroft Moment would be Comey et al arriving at the firm conclusion that AS A MATTER OF FACT they really don’t know what the hell is going on, and despite the efforts of Goldsmith, & perhaps Mueller to some extent also, to find out – by asking Addington [& being told maybe a bit but otherwise being told to f**k off it’s none of your concern] – – thereby negating the ability of the AG – whether nominated & confirmed or Acting – to certify.
Where I particularly like Mary’s scenario is in surmising the response from Comey et al that ‘put the program back [ha!] onto solid legal grounding’. Under Mary’s take, it would suffice for Comey, & et al, & thereafter for AG Gonzales, to simply stick somewhere in the materials presented to the FISA court some indication that X, or X & Y pieces of information came to the attention of the FBI from some other USG program which is subject to a presidential classification level that prevents the DoJ from providing full information to the FISA court –
which then sets up the risk that someone on the FISA court will read that, think about it, maybe discuss it with some other members of the FISA court, at least in theory, and leading the eureka moment in the FISA court that what that judge or the entire FISA court is being asked to do is to assume the same position as Ashcroft was, and Comey was, and that Gonzales is only too willing to assume.
Conyers left out some of the porn scenes from the IG report on gtmO. Morphing the issue into which tocha is illegal tocha is the neoRepublican twist on their “policy” of the past seven+ years. Even the writers of the score unwittingly bereft of copyright protections, are countering in the so called zero decibel protest. Time to launch the rerun of the Seventh Seal.
11 – my guess is that they are looking for a writing, or the writing, which actually withdraws the opinion and no one has given it to them.
On these arguments – that the 4th doesn’t apply during war or that you can seize citizens and ship them off for human experimentation, etc. one of the nice things about the Milligan case is that you have gov’s actual arguments provided with the case.
See if these don’t look familiar (the Constitution isn’t a suicide pact, the war is like no other, the CIC has to be able to do anything necessary to protect the country etc.)
For Gov in Milligan:
http://www.law.uchicago.edu/tr…..lligan.pdf
The Sup Ct dealt with this. It held that as long as courts are open and operating (and that was before gov had access to a “secret” -possibly unconstitutional itself – court for non-advocacy proceedings to obtain orders) gov’s arguments sucked.
emph added
I’d like to see how Yoo et al handle this – Philbin seemed to proceed from an assumption that Milligan would just be overturned in his memo. I’d say that they can’t pretend they didn’t know about it – and knowing, how they give advice to a client completely contrary to known law is something that’s hard to understand. OTOH, I’ll say this again as well – when Comey and Kelly handed off people to military torture, they knew about Milligan as well. It didn’t change their actions.
He dismissed it in a footnote? From the footnote cited above:
The word “unhelpful” here, as in the main post, seems a jarring note in an otherwise plesant melody. It guess this is a copy from the committee report, but substituting the word “hepful seems to me to make more sense, that is:”heplful precedents of seemingly greater weight… are dismissed in footnotes”.
unhelpful to Yoo.
I think it’s a way to say, politely, that he buried the precedents that hurt his case.
They just didn’t care about Milligan; they were bigger than mere case precedent.
On the former front, how do we know they really have withdrawn the memo? Because that creates a whole set of issues on its own….
Why does everyone here write “teh program?” It’s not a joke exactly, although it seems to be some kind of jargon. It reminds me of when people use Yiddish words thinking it’s going to bring us closer together, but I have no idea what they’re talking about. Here I know what it means, I just don’t know why it’s worth going to the trouble of reversing letters that are already in a fine order.
And the “particular space” was defined as the United States of America?
Well, for the purposes of their hypothetical, it was defined as an apartment building.
But we could consider the US one giant apartment building, I guess. I do know our elevator isn’t working properly.
They’re now bugging the elevators?
Oh, I think you think too small. “particular space” in this case should probably be read as “the entire world.” Although they would argue that nobody needs to worry about breaking US law if you’re doing it in a different country.
Tekel!!!! – Hey, you got Westlaw there you could do a quick search for this 1933 New Mexico Supreme Court case we are looking for?
You would be very loved, well even more so, if you could find that!
In addition to “justifying” unwarranted searches, the document also justifies “attacking” the building, further, in (1) it describes “destroying” a civilian airplane; in neither case are the notions of attacking and destroying places where people may be ensconsed given any consideration. This looks to me much like what is happening in Gaza this week, where buildings suspected of containing “militants” are destroyed, families included.
Well, the destroying planes is almost certainly in there to justify Cheney’s illegal shootdown order.
But yeah, they’re going WAY far out there on what they’re letting C-in-C do.
The definition of “Domestic Terrorist” is:
“Anyone who pisses us off.”
It doesn’t matter anyway, once they say they can detain anyone in the same apartment building as an alleged domestic terrorist.
19 – I’d like to be surprised, but I’m not.
And then the big question is what is the 1933 NM Supreme Court opinion? I bet it’s a doozy–and I rather suspect we were intentionally given enough information to find it so we can all laugh at Yoo.
Here are links to the 1933 NM SC opinions.
23 – I think all we have on that is Mukasey saying it wasn’t being turned over, once upon a time, bc it hadn’t been relied upon, but that’s just a vague-ish recollection. I think something similar was said about the Philbin opinion, but then there it was being used as authority in the much later Goldsmith’s “let’s us’uns kidnap us some people and have us’uns some fun” memo. Which is interesting, since Philbins memo itself had relied upon the application of the Third Geneva Convention to “everyone” in getting to his determination on military commissions.
I’d love to see how someone says they “relied” on those OLC opinions on torture being ok during the war on terror, when they have one of the earliest OLC opinions saying that the conventions apply to everyone; then Taft and Powell saying the same, then Gonzales saying, YIKES-if we don’t make up names for the detainees (illegal enemy combatants) and pretend that people with those labels aren’t protected by the Conventions, we’ve committed warcrimes under the war crimes act —- then tack on Yoo saying that despite the Sup Ct ruling directly to the contrary, the Pres can ignore the 4th while acting as CIC bc, oh well, just because the Sup Ct can’t issue binding case law about the President’s CIC powers I guess?? and find me the straight face. OTOH, lawyers with some of the finest legal training in this country bought off and handed people off to torture.
I think even at Yale and Harvard they do teach controlling and non-controlling precedent. There’s no way a NM Sup Ct opinion becomes controlling precedent over a US Sup Ct ruling on the issue of the powers of the President as CIC. Or more to the point, on the meaning of the US Constitution.
I have to call it quits for tonight.
Sad again.
From the early section of the EW Missing White House Emails Timeline:
Good to know that while OLC was making up the New Rulez, the WH was unable to correctly archive their own federal records, Rove was using his Blackberry to gwb43.com, and regs on Wall Street (which, presumably could have tracked digital money transactions had they been in place) were being tossed aside like old fish wrap.
I’d take all this GOP talk about 9/11 and their desperate need to protect us all a lot more seriously if they themselves hadn’t profited so extravagantly from their deceptive conduct.
Just an observation.
Or, you know, if they were actually trying to protect people instead of just robbing us blind.
Not only robbing us blind, but then smacking our eyeglasses. Or sending those off to a pawn shop.
But hey, the only way to save the baby is to throw out the bathwater, the entire water heating system, plus the pipes to the water reservoir. And then sell the water in the reservoir to some Russian oiligarch.
Or maybe they’ll just settle for ’selling it short’?
Deplorable.
It seems strange that the Bush WH would go from claiming wartime powers, because foreigners attacked us with planes, and twist about to use those powers to claim any American is a potential terrorist. Remember this is Ocotber 2001, so we were still hearing that Bin Laden is hiding in a cave in Afghanistan.
If the WH can claim that terrorists are already among us, then maybe the Bush WH knows something that we don’t.
I’m still rolling with my pet theory–that the 9/11 hijackers came to the US before the official FBI timeline (Richard Clarke tells us al Qaeda members routinely stowed aboard liquid fuel tankers docking in Boston), married Americans and were effectively Americans themselves at the time of 9/11. This would mean their attack against the country (terrorism) would be legally merely a law enforcement issue. But a law enforcement issue would prevent wartime powers from aggregating to the Bush WH. So the Bush WH would want to claim the ability to name any American a terrorist thus taking care, retroactively, of the Bush WH’s potential feet of clay in claiming “war footing.”
Dumb question: Is this subjugation of law really about terrorism? About torture to get information?
How could these evildoers torture a kid like Pidilla for this long if the objective was information gathering?
All this recent fearmongering is protesting too much.
I want to return briefly to the nagging issue all that space “below the level of reaching probable cause” – partly for the benefit of the non-lawyers here, but also to focus what Bush et al did here – – which connects to that extraordinary display of presidential terpsichoreography yesterday.
When in the course of a criminal trial a trial judge enters into a suppression hearing, it’s very usual for the defense & prosecution attorneys involved to engage in lively argument, against the positions of the other & directly with the judge – about whether for example an intercept was or was not done on grounds that objectively satisfy the 4th Amendment. In the course of that, the judge & the attorney’s don’t just have the language of the Constitution to refer to; they also have many thousands of reported cases from the past, some that went up the court’s food chain above the trial judge, & typically at least some that are close to the fact situation that is before the court.
When a criminal trial attorney sees this language being used in context, the first reaction is to think: Oh – well, it’s clear the investigators had SOME information; but there’s going to be some challenge to whether that information was reliable, & after that there’s going to be an argument as to whether those grounds are SUFFICIENT.
As to that test, ’sufficiency’, the attorneys & the court are going to start the process from some common ground: including that it means something below the test for a sound, rational determination of the person charged being guilty as charged i.e. less than beyond-a-reasonable-doubt, but something above … well, nothing – but also: bias, tin-foil hattery, conspiracy theorupy, whim etc etc, each of which might have some at least arguably ‘informational’ content, or even ‘value’, but still are ‘below’ the standards which should satisfy the 4th amendment.
Now: that’s what the language meant when it was ‘first’ used. It meant: okay; this is close; not there, & a court should say it’s ‘not there’ for a lot of good reasons; but at least we can set in some rational world view how & where it came up short.
But: to employ that language, designed for the purpose of applying a test of sufficiency, in a memo that you just have to know Addington wants to use to load a big gun to be used under the discretion of malevolent non-lawyer apes likes Bush & Cheney – – well, that’s like putting a fully loaded pistol with the safety off onto the breakfast table next to your 6 year old’s juice & Fruiti-Os.
***
Related observation:
Yesterday Bush referred to the Constitution in language that – surprise – reveals he doesn’t see that word meaning what we here see it meaning: the document setting up a system of democratically-elected government based on the rule of law. Instead, it’s pretty clear from his riff on the Constitution yesterday [I’m referring to all that part containing and surrounding “connecting the dots”] that what he means by the word is:
An area called the United States of America, made up by land & water & air space & below ground with geographically identifiable boundaries & reference points – folks inside that area that have a right to be inside it – folks inside it that area that don’t have a right to be inside it – folks visiting inside the area from outside the area – folks visiting outside the area from inside the area – all the places outside the area – all the folks outside the area that belong outside the area – a bunch of bureaucrats to do whatever the president tells them to do – a Congress that talks about ideas for laws & votes on those ideas & offers suggestions for new laws to the president – a court system to tell folks who the president says broke the law how much time they have to spend in jail – –
& that’s pretty much it.
Veracity/Probity. Materiality. And, of course, where the hell the info came from.
Yep – all o’ them lawyer-type concepts that make stuff all legal-like
Well, it wouldn’t be eliminating the 4th Amendment if you didn’t totally eviscerate “probable cause,” right?
No–that’s really helpful. Thanks.
Applause, applause.
Most excellent translation.
One of the reasons that I first started checking out EW’s old site at TNH was to try and follow conversations about legal writing (well, in addition to morphing into a Plame junkie, which naturally followed from the interest in legal writing b/c of the explanations provided by FDL’s CHS, plus EW’s doc analysis).
If I might indulge in a bit of vapid, gushing enthusiasm, I think your example is brilliant.
There’s a concept called “idea complexity”. It was used quite cleverly to assess the effects of aging on a group of nuns, in an effort to try and identify early life predictors for later Alzheimer’s.
An epidemiologist located samples of their writing at age 20. He then matched those writing samples up with assessments of the cognitive function of the same nuns — now in their 70s, 80s, and 90s. He spotted a key pattern: the writing samples that exhibited low ‘idea complexity’ were strikingly predictive of who would develop Alzheimer’s.
Idea complexity is a function of several features, but one of the central ‘markers’ is the ability to use ‘conjunctions’ (i.e., ‘relational words’: because, consequently, therefore, however, nevertheless…)
I don’t know whether this floated off the top of your head, after watching GWBush for so long, but I’d note that anyone who claims that this crowd shouldn’t be subject to criminal investigation is making a huge mistake. This is really dangerous stuff, and if there isn’t a brighter light shining on how a man with this level of limitation got into office, even Obama can’t save us.
But while it was Bush’s responsibility to oversee all this, there’s some evidence that he could not fulfill those responsibilities due to his limitations. That actually placed more responsibility on his underlings.
And this is what they came up with.
If this were another universe and I were watching from the rings of Saturn, I’d point out that this is arguably a case of ‘dumbing down’ the law to the point that a functional illiterate – incapable of distinguishing any places on the spectrum other than ‘black’ or ‘white’ – would be happy with their work.
It’s a cognitive problem with enormous institutional ramifications.
If you want an example of complete and absolute ’system collapse’, here it is.
Seriously scary.
Wow, now that’s pretty cool. Had I known that when I was teaching 20-year olders how to write.
Does that mean I won’t get Alzheimers? Because I just read something the other day that said those who have sports concussions in their youth are more prone to Alzheimers. And I had at least one of those after taking on Dartmouth’s rugby team single-handed.
And did you note the Yoo doozy the other day where he flipped the meaning of “And”?
Yoo flipped ‘and’??
Jeez, I missed that — can you point me please?! Sounds like a juicy, juicy example!
And that whole concussion thing…. from what I hear, the evidence is growing. It’s not good. However, given your other work, I’d say you’re on the safer side of the issue — But I am NOT a medical authority 8^0
Funny, I coulda sworn that that camp were the ones screaming the loudest when teh Clenis observed (correctly, in the context) “It depends on what the meaning of the word ‘is’ is.”
From your keystrokes to my reading…”scary” is an understatement within the context you present.
By the way, you made my day…My editor slams me for using conjunctions.
It’s finals week for son-of-klynn. Therefore, I was late to the document party. Thank you EW and all contributing to the weed garden.
Oh, jeez, you must, must, MUST!!! use conjunctions!!!
The programmers around these here parts will fully understand it in these terms:
What if, in programming, you had no “OR” functions? =
What if you had no “IF, AND ONLY IF” (for… if…)?
What if you had no EQUALS? (=)
What if you had no NOT EQUAL TO? (!=)
Anyway, you get the idea.
If you didn’t have those things, you’d have NO “LOGIC” in the code.
Zippola.
How would the software ever be able to assess criteria and then locate the decision points and act correctly?
(And I defer to the hardcore coders around here, off the top of my head, I’m guessing: bobschacht, randiego, JohnLopresti, BillE, JohnJ, MadDogs, WmO, …. just for starters.)
Think of conjunctions as the ‘flow chart diamonds’ of linguistic expression.
They’re the decision points.
Without them…..
Well….. look at GWBush the past 8 years; fuzzy decision criteria, not well identified…
Must dash off — writing this rushed, so hope it makes sense.
Explain to your editor the significance of conjunctions.
Don’t overuse.
But they’re essential.
(Cognitive explanations reserved for some other time…)
Apologies, this keeps removing the carrots that were intended to signal ‘more than/ less than; more than or = to, less than or = to’).
The problem with that list is that it only liss the case captions. I would suspect there’s a teeny bit of obiter dicta that Yoo pulled out from one of those obscure cases to support some wild transgression.
You’ve got me so I almost want to go to the law library at the nearest law school and pull down volumes 37 and 38 of New Mexico Reports and read them, cover to cover. Though, I suspect starting with the cases involving the State as a party would be the way to go to streamline things.
That’s what I was going to do–do a search on the ones with the state as a party.
Because these guys never commit a crime just once. If Yoo used it once, he likely used it in something that is out there in the Googles.
I thought about that. But also could be one of the State ex rel cases; or, alternatively, if it was a citizen or entity against a named governmental official, it could look like a regular civil caption. So I decided there were a few too many possibilities without a search engine or a digest.
Man, this lawyering is hard work.
Personally, I think it is fascinating!
40 is in reply to 27.
Damn reply button ain’t workin’.
this is really hard reading. and long. and everybody’s ahead of me cause I had to work all day. whiiiinnne
I read the material on the Plame case, and it got me to wondering if the material disclosed in the David Sanger article had any connection with Plame. There was a lot of talk that she was involved in the operations to interfere with the nuclear project in Iran. This is from the article:
As to the hypothetical construct of an Apartment House. I think this comes from one of the Homeland Security War-games — all about a nuclear device being set up in an apartment, ready to go off on command from a cell phone. I think it was played both in New York and in Washington DC in a location that would contaminate both the Capitol and the WH. It may even date from Clinton era war-games.
The example shows up in a number of places — it is mentioned in the 9/11 report as an example of training narratives, and it even shows up in early stories about natural disasters and accidents — remember the small plane that crashed into an E. Side NYC Apartment Building? Also the town house that blew up due to Natural Gas. Early reports had Homeland Security checking for such a nuclear device. This could be a case where the invented, fictional Scenario drove policy on many levels. This should not surprise us — about two weeks after 9/11 the Pentagon contracted with Disney’s “imagineers” to do their thing — thinking they told them, like al Qaeda. (Why Donald Duck’s creators would be good at this — or better than anyone else, should intrigue us.) At any rate, I suppose what we see here is the DoJ’s response to the work of the imagineers.
I don’t know, I think hiring Donald Duck fake terrorists is very predictable for a Mickey Mouse outfit like the Bushies.
Thank you Marcy, bmaz, LabDancer, Scribe,EOH, readerOTL and others who have worked so diligently to explain the intricacies of the criminal conspiracy that turned out to be the BUSH DOJ. This site is costing me sleep but I support it, will continue to and eagerly anticipate every installment of emptywheel. I look forward to reading your community explanation of the sentencing guidelines and anticipated prison terms of the perpetrators following their trials.
Wow. Don’tcha just hate it when you turn out to have been right all along, sometimes?
I have a feeling the Prez address Thursday night might just be a doozy.
Thank you, LabDancer – i learn a lot when you legalbeagles explain the situation so well.
I wonder if this memo was in the info turned over to Judge Diggs-Taylor when she demanded info on the program be provided to her, prior to her ruling? If so, it might make it a little more difficult to argue that it wasn’t being “relied on”
Now that’s a most enticing observation…
Pardon me if this has already been asked/answered.
… according to the 9/11 Commission Report, at page 38
September 11, 2001
“At 9:59, an Air Force lieutenant colonel working in the White House Military Office joined the conference and stated he had just talked to Deputy National Security Advisor Stephen Hadley. The White House requested (1) the implementation of continuity of government measures, (2) fighter escorts for Air Force One, and (3) a fighter combat air patrol over Washington, D.C.”
Shortly thereafter, the recently installed non-President declared a State of Emergency. Since that declaration, over 50 NSC directives have been issued, the vast majority without publicly known title or description. That State of Emergency has been extended, annually, to the present day.
So, here are my questions. If we are still in a state of emergency (we are), and if the COG plans and statutes are still in force (we haven’t been told otherwise), isn’t this a de facto state of martial law? If you can’t ascertain that you are not living in a condition of martial law, how can you assert that you are not? If you are, then opinions of any kind or strength don’t count, unless you are the non-President.
This leads to the following rumination: If I’m a leader and I’m not completely dumb (I know, I know, but , can you say who the ‘leader’ really is?), I would want to rule with as little fuss as possible. Fuss, that is, that might otherwise have blowback. Fuss that would raise troublesome objections. You know, fuss. So why tell anyone more than they absolutely need to know? Why not pretend that, in some instances, we are back to ‘normal’ life, and then I can sleep soundly with the knowledge that all of the rules, laws, procedures and the constitution have been completely put into suspended animation? Then, I could allow people to argue endlessly over fine points (or not so fine points) of law, the constitution, etc., while doing whatever I damn wanted to, people (my people) could write faux justifications for various courses of action without reference to reality, other people (my people) can loot the country freely, and legal and financial experts can trip all over themselves trying to untangle my actions and intents, because ultimately I am protected by the ongoing declaration of a State of Emergency and the (essentially) unlimited power granted by the COG statutes. Sound familiar?
Isn’t that how it really is these days? Can anyone set me straight here?
Please don’t bother with the butterfly dreaming it’s a human argument. I am unfortunately not dreaming.
–TA (The law is NOT the law)
Without endorsing your scenario, I would note that IF it were in effect, it would seem that push comes to shove at the time of the first Presidential inauguration after the declaration of CoG. In other words, do the secret CoG “rules” include yielding power back to the ordinary Constitutional mechanisms on the occasion of the next election + inauguration, and if not, what really happens on Tuesday?