Breaking: Previously Unreleased OLC Opinions Now Released

/65 Comments/in , /by

A bunch of DOD-related OLC opinions just got released (h/t Spencer)

Of note, the one eviscerating the 4th Amendment has been released, and a key one on FISA that I believe Steven Bradbury didn’t include in his FOIA response on opinions relating to FISA.

Consider this a working thread.

January 15, 2009: Steven Bradbury attempts to partially roll back previous bogus claims

It appears that, just before Bush went out and Obama came in, Steven Bradbury attempted to partially roll back the most egregious opinions of the Bush Administration. Make no mistake, though. Much of this represents just a partial roll back. So rather than saying Bush had no business conducting his illegal wiretapping, Bradbury instead refers to the January 2006 DOJ White Paper which claimed (Tom Daschle’s objections notwithstanding) that the AUMF authorized illegal wiretapping. Similarly, while Bradbury admits that Congress has some authority to make law, that’s a limited admission. 

65 replies
  1. scribe says:

    You will all just LOVE footnote 1 in the 10-23-01 gutting the Fourth Amendment as it relates to the military.

  2. Hugh says:

    The 4th Amendment one is an 11MB file. I often think that the government when it doesn’t want something widely disseminated puts it in as big a file as possible.

    • selise says:

      just took a quick look… worse, it looks like it’s all an image file (so no text searches). if that’s correct, i will run it through ocr and attempt a text version for posting – unless tw3k or someone else beats me to it.

  3. klynn says:

    Enjoy the last paragraph on page three of Military Detention of US Citizens…The power of the Executive and the confines of the definition of enemy combatant could put us all in jail just for writing here potentially. Now all the arrests at the convention, for no reason, make sense.

  4. Jkat says:

    Bradbury admits that Congress has some authority to make law,

    wow .. is that progress or what ??

  5. drational says:

    The Warrantless Wiretapping memo suggested it was perfectly constitutional to amend FISA, such that foreign intelligence would be “a purpose” rather than “the purpose” of wiretapping.

    This was apparently drafted when they considered working WITH congress to make changes after 9/11. They obviously abandoned this idea, but it probably gives an idea to the standard they ultimately used for wiretapping in secret= the acquisition of foreign intelligence as an afterthought….

  6. emptywheel says:

    For those unable to open the 4th Amendment OLC opinion, the fn scribe is talking about is a gratuitous citation of a Libby paper arguing that large scale chem/bio attacks are more akin to war than terrorism.

    • scribe says:

      Rather than “gratuitous”, I’d say it’s more of a mutual BJ cite, just to let Gonzo know that Yoo and Delaunty had heard from Deadeye’s shop and were fully on board.

      • emptywheel says:

        You know, “blow job” is the word I used first in my head. And then I translated it into the more decorous “gratuitous.”

        From now on, you’ll know that when I say “gratuitous” I really mean “blowjob,” ‘kay?

        • scribe says:

          “Accuracy is always professional.”* And I don’t want to relegate “gratuitous” to the realm of safety words – not to be used except when really, really needed. It has so many other good uses.

          And calling something a “mutual blowjob society”, which this memo was, is more accurate (IMHO) than calling it “gratuitous”. Everyone knows what a “mutual blowjob society” is and how it operates (for the uninitiated, it usually does not involve actual fellatio), and that’s what is going on here. To spare the sensitivities of readers who might get the vapors, I’ll stick to BJ.

          But, on another level, that footnote is also a signal that OLC got The Message and Is On Board With It. That, I think, is even more important.

          –
          * A few years back, I used that line on an adversary counsel in a deposition exchange that went something like this:

          Scribe: “You cannot attempt to rehabilitate your witness while I’m examining him. The purpose of a deposition is to find out the facts, and I will not allow you to testify for him or coach him, you twit.”
          Adversary: “How dare you call me a twit! That’s unprofessional! I’ll have you up on ethics charges!”
          Scribe: “Accuracy is always professional. And when the ethics people read this transcript, they’ll agree with me both that you’re being a twit, and that I’m describing you and your behavior accurately.”
          Adversary: [gagging noises]

        • bobschacht says:

          I really am grateful for all the education I’m getting on the legal vocabulary necessary for understanding these issues. Thank you! /s

          Bob in HI

  7. scribe says:

    LEahy’s going to love the “Swift Justice Act” memo from the spring of 2002. Short version: Congress cannot control the President in his C-in-C rule.

    • Jkat says:

      before this is all said and done we need to make sure the “unitary executive” idea with all these extra-constitutional [which imo is a preposterous position.. even an oxymoron ] gets a wooden stake driven through it’s evil heart …

      • PJEvans says:

        Make that stake garlic juice-soaked and wrapped with silver wire. Otherwise it will rise again.

        (I’d prefer also stuffing the whole thing with garlic, but that’s possibly a bit difficult. Stuffing the proponents with garlic, as well as using a stake, is another option. Just saying.)

  8. emptywheel says:

    Remember, Congress has already seen these–particularly the Judiciary Committees. They’ve been trying to get them released so the rest of us coudl join in the fun. But when Leahy and others talk about the mess made of OLC, this is the kind of stuff they’re talking about.

  11. WilliamOckham says:

    I think Bradbury is attempting a cover-up rather than a rollback. He has a bit of boilerplate saying that these memos didn’t “address specific and concrete policy proposals”. I call bullshit on that.

    Class, take out your copies of Mayer’s, Savage’s, and Suskind’s books (you do have those, right?). Now match up the dates of all the really egregious law-breaking to these memos. It’s very clear what happened. Cheney and Addington had a laundry list of stuff they wanted to do, some nefarious folks in the various bureaucracies had plans ready to implement, and Yoo, et. al. was ready to spew out some bogus opinion to justify it.

    • LabDancer says:

      By his memo of October 6, 2008, Bradbury has ensured his legacy as a punchline to an opening joke in every Constitutional law course section on advising government as one’s client to the end of human history.

      • LabDancer says:

        “This conclusion does not reflect the current views of this office” …

        …just the intervening 2,566 days.

        • LabDancer says:

          It all brings to mind those public address system announcements in M.A.S.H. :

          “Attention. The Saturday Night Movie in Mess Tent #12 at Camp Dismay 366 Saturdays ago, that was advertised as “When Johnny Comes Marching Home” but which actually turned out to be “Daphe Does Dusseldorf”, has been determined to be a porn flick & deemed unsuitable for distribution for viewing on U.S. armed forces bases. All officers & enlisted personnel who attended said viewing are hereby advised said movie, “Daphne Does Dusseldorf”, has been officially de-listed as unsuitable for military entertainment. That is all.”

  12. reader says:

    It’s no wonder we are all upset. And it’s ALWAYS worse than we imagine even while we imagine the worst! I was just thinking that this morning.

  13. JThomason says:

    The walk-up to reliance on in-house counsel was beta tested in the environment of the 70’s & 80’s where corporate officers and management types wrested control from stock-holders insisting on larger compensation eviscerating dividends. It was also in the environment where corporate management types tested the capacity to control discovery and deceive courts under the corporate doctrines of managements and shell game accountability.

    It is no mistake that these practices came to fruition during the Bush/Cheney regime. The methods of in-house self justification and concealment were already practiced. The one crucial calculation they may have overlooked to their peril is the well worn understanding that the pigs get fat and the hogs get … well you get the picture.

  15. scribe says:

    From the “Swift Justice Act” memo, beginning section II:

    The proposed legislation suffers from further flaws in that it purports to circumscribe the President’s authority to detain enemies suspected of war crimes and to establish military commissions to try them for violations of the law of war. To the extent that the legislation is intended to suggest that the President may operate only within the confines of the legislation, it is unconstitutional as an encroachment on the President’s powers as Commander in Chief. We are aware of no other legislation that similarly attempts to interfere in the manner in which the Commander in Chief deals with enemy combatants.

    (emphasis in original)

    In short – “Congress, you can’t tell us what we can do, and you can’t tell us what we can’t do.”

    Or – “your laws do not apply to us.”

    Sounds familiar.

    • acquarius74 says:

      Commenters, please forgive my impulsive remark at #25. After reading all comments, it’s the subject matter that took precedence. Ya’ll are the best BS callers I ever met up with!

  17. bobschacht says:

    OT?
    Text of Remarks as Prepared for Delivery by Attorney General Eric Holder at the Jewish Council for Public Affairs Plenum, including:

    It’s a special privilege for me to lead the Department of Justice at this moment in its history. My Department has many goals to which we aspire. However, nothing is more important to me than defending our nation and its citizens from acts of terrorism, and ensuring that our government abides by the letter and the spirit of our Constitution.

    Most of the speech is devoted to how he intends to accomplish these twin objectives. Of course, wrt the Constitution, he’s thinking Terra! Terra! Terra! and doesn’t mention such cases as Al-Haramain’s.

    Perhaps we need to quote this back to him and ask WTF?

    Bob in HI

  18. klynn says:

    The one crucial calculation they may have overlooked to their peril is the well worn understanding that the pigs get fat and the hogs get … well you get the picture.

    (my bold)

    Please, show us!

    • JThomason says:

      I was reckless enough lumping all the corporate types together but I do think that the flowering of this mode of operation under Bush/Cheney speaks volumes that some were getting away with this and that these methods then become SOP and I do think the precedents were set in the reformation of corporate governance I referred to where there was a revolution in executive power.

      Maybe the hogs get held to account…at the very least…or maybe the genie is out of the bottle.

      • klynn says:

        From your typing fingers to our reading eyes…one can only hope for an accounting!

        I must agree with ApacheTrout. Gonzo authorized the President to secretly declare martial law.

  19. ApacheTrout says:

    The 10/06/08 memo debunks three key pieces of the 10/23/01 memo.

    1) States that the 4th Amendment is fully applicable to domestic military operations.

    2) Describes as “unnecessary”, “overbroad”, and “general” the subordination the 1st Amendment to military necessities.

    3) Describes as too “general” and “divorced from specific facts and circumstances” the conclusion that the Posse Comitatus Act did not apply to domestic deployment of U.S. Armed Forces to prevent and deter terrorism.

    Wow. I certainly must read the 10/23/01 memo in its entirety, as the 10/06/08 memo suggests that, for all intents and purposes, Alberto Gonzales (the author of the 10/23/01 memo) authorized the President to secretly declare martial law. And because nearly 7 years passed before the the 10/06/08 memo was prepared, does this mean that the 1st and 4th Amendments to the Constitution were effectively null and void between 2001 and 2008?

    • scribe says:

      Gonzo never authored a memo in the OLC. Not that bright. He was the recipient of the 10/23/01 memo. Yoo and Delahunty authored it.

  20. Peterr says:

    If you want a case study and primer on the Unitary Executive, just read the 11/15/01 memo on the president’s authority to suspend the ABM treaty.

    Yes, two thirds of the Senate must concur in order to amend a treaty, but the president can suspend a treaty all by his lonesomeness. What’s the difference between amending and suspending? Amending a treaty means changing the words of the document; suspending it means ignoring them. (p. 19)

    The memo has Yoo’s signature but it also has Addington’s fingerprints.

  21. scribe says:

    From the “Swift Justice Act” memo, in a section explaining why the act would be unconstitutional.

    The memo takes the position that (which we’ve heard elsewhere) because the powers of Congress as set forth in Article I are enumerated and the President is given merely the unenumerated Executive power, the President’s powere therefore trumps the Congress’ powers. (I oversimplify, but you’ve all seen this time and again and know the argument.) Then, we get this gem of a footnote:

    7 See also Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 126 (1984)(“the decision not to prosecute an individual may not be controlled [by Congress] because it is fundamental to the Executive’s prerogative”); id. at 142 (“If the President is to preserve, protect and defend the Constitution, if he is faithfully to execute the laws, there may come a time when it is necessary for him … to refuse to prosecute those who assist him in the exercise of his duty…. To seek criminal punishment for those who have acted to aid the President’s performance of his duty would be … inconsistent with the Constitution.”).

    Remember, too, that the 1984 memo was written by Chief Justice Roberts in his earlier incarnation as a Reagan DoJ lackey, and it was written in the context of Burford and Watt refusing to testify to Congress.

    And, remember further, that he was working with Friendly, Gonzo’s successor once removed in the WH Counsel’s office.

    And remember still further that Roberts would wind up having to rule on the legality and constitutionality of Bushie’s actions, taken in “reliance” on memoranda and analyses Roberts himself had written.

    So, this memo tells the recipients and readers that, so long as the Preznit wanted it, they could rely on OLC to give them the get-out-of-charges (let alone jail) free card.

    • acquarius74 says:

      So, doesn’t this explain why Karl Rove, Miers and Bolton roam free?

      Do you think the author of that ‘Swift Justice Act, footnote 7′ was maybe guided to it by its original 1984 author, Chief Justice Roberts?

  22. acquarius74 says:

    Does anyone recall the exact quote of GWB’s when he smirkingly said something to the effect that he would be long dead before anybody figured out what all went on in his oval office?

    heh, heh, too bad he didn’t know about FiredogLake on the internets…

    The Dawgs at our Lake are off the secret memos leash – – ya better book a flight to Paraguay, Prince Georgie!

  23. scribe says:

    Hmm – in light of the Swift Justice Act being so trashed by the OLC, one is compelled to wonder why the DTA and later the MCA were so important for Bushie to get passed. Beyond rebukes in the Supreme Court, of course.

    And what memoranda relating to them are out there, unexposed to the light of day.

  24. R.H. Green says:

    Scribe @ 36.
    Thanks for the comment; I was puzzling over how Gonzo in his position at that time had the authority to write such a thing -and have it stick.

  25. selise says:

    v quick and dirty ocr conversion of the 4th Amendment pdf (it’s also been awhile since i last did this, and i don’t remember all my tricks):

    compressed pdf with text (2.1 MB)
    text only (144 KB)

    since marcy says the doj is making good pdfs w text, i’ll hold off on cleaning this one up or doing any others unless there are any requests (email me or leave a comment in this thread).

    • acquarius74 says:

      LOL, selise – – reminds me again to be careful what I ask for! hee,hee

      Is the author, Yoo? Couldn’t find who authored it in my quick read. Sounds like him; so full of himself; after all he is exceptionally gifted intellectually and there’s no one smart enough to argue against him../s

  26. Hmmm says:

    All y’all finding anything there that would shed any light on whether continuity-of-government ever got implemented, and if it did, whether (in their eyes) it ever reverted back to Constitutional government? I’m getting the feeling that no such thing would have been necessary (in their eyes), given the unspeakable new powers they arrogated to the Executive.

    • bluebutterfly says:

      Rumsfeld revised the COG and signed it in Jan 2001.
      *************

      The Bush administration put COG plans into operation for the first time in U.S. history in the hours directly following the September 11, 2001 terrorist attacks. They have never been rescinded.

      ” With the stunning revelations published by Wikileaks, it is abundantly clear that top Bush administration officials were busily revising Continuity of Government plans, including “civil disturbance” contingencies for suspending the Constitution and imposing martial law, long before the 9/11 attacks. “

      http://wikileaks.org/wiki/Rums…..efore_9/11

      • Hmmm says:

        Thanks bluebutterfly, I hadn’t seen that page. Though I was asking more about whether any of the material released today might relate.

        (OT — I am curious whether it might be impossible to verify that “They have never been rescinded.”)

        • bluebutterfly says:

          Maybe DeFazio’s office would say if it is still in effect, assuming that he himself would be told. Who knows in the age of Bush’s secret signing statements/memos what was, or wasn’t, rescinded before Jan 20th? All I know is that there hasn’t been an Executive Order or Statement concerning this.
          **************
          ” So secretive are Bush administration plans that Peter DeFazio (D-OR), a member of the House Committee on Homeland Security, was denied access in 2007 to the classified version of the COG plans contained in top secret Presidential Decision Directive annexes. This too, is unprecedented. “

          http://wikileaks.org/wiki/Rums…..efore_9/11

  29. LabDancer says:

    Reading Yoo’s memo to Kris — Kris! — dated Sept 25 2001.

    Slipshod; sloppy; crazy! Somehow Alexander Hamilton’s Federal Papers trumped all subsequent binding rulings in the SCOTUS. Must have missed that class; my bad for failing to sign up for the bi-monthly Federalist Society orgies?

    The reasoning goes like this:

    Here’s a position we could take, with some arguments, based mainly on cherry-picking from actual court rulings, extrapolating more or less on the Gumby rule [Twist, twist, twist; twist until it actually breaks & then keep twisting some more, until you get ordered to stop twisting because the damn thing is already twisted permanently beyond recognition; if found beyond appeal to have been broken beyond any possibility of repair, commission a new, more flexible Gumby; repeat as thought necessary or advisable], ignoring inconvenient alternative views, including binding authorities [They’re just opinions! It’s like Darwin: it’s a THEORY!], or by finding same outranked by pithy quotes [preferably, but not necessarily, from Federalist Papers]. Not that we’re suggesting these views ever actually get submitted to Congress or to a court, because then there’s a risk someone might not agree; instead, just it take from us: there’s an argument; & if you want to actually call it a legal opinion, well: okay, sure.

    One little memo into this, & already I got a stomache ache.

  32. acquarius74 says:

    I’m half way thru NBC nightly news – not a word about all this and in the ‘coming up next’ not a word. I made a bet with myself that there wouldn’t be before turning it on. Switching to ABC.

  33. jimhicks3 says:

    I didn’t read through all the responses so if this is a repeat – sorry.
    The sentence that I’ve been waiting to see is on the second page. “It is VITAL to grasp that attacks on this scale & with these consequences are “more akin to war than terrorism” “. (my cap).
    I think everything following 10/23/01 is attached to the concept that the US is at war without congress having to declare war or have any participation in that determination. This concept was repeated over & over even more than the al-Qaeda reference.
    & it’s VITAL that EVERYONE grasp this concept. Cuz if they don’t then how to justify all the other activities.
    jh3

  34. scribe says:

    About the two memos withdrawing approval from prior memos, What Jack Balkin said:

    The October 6, 2008 memo disowns Yoo’s secret October 25, 2001 memo which stated that if the government used the military to fight terrorism inside the United States, (1) the Fourth Amendment’s ban on unreasonable searches and seizures would not apply to limit domestic military operations, (2) that the First Amendment’s guarantees of speech and press might have to be subordinated to military necessity, (3) that the Posse Comitatus Act, which makes it illegal to use of the military for domestic law enforcement purposes, would not apply.

    The January 15th memo is even more striking. It disowns statements made in a number of OLC memos (mostly authored by Yoo) made in the wake of the 9/11 attacks. It attempts to excuse these statements on the grounds that the OLC memos were issued under extraordinary circumstances and it notes that, in contrast to usual OLC practice, these memos offer broad hypothetical statements rather than responding to concrete situations. The January 15, 2009 memo insists that the OLC has not relied on these disowned statements of law since 2003.

    First, the January 2009 OLC memo disowns the claim, made in several OLC memos, including the infamous torture memos, that the President has the sole power to decide on conditions of detention and interrogation of captured individuals and that any attempt by Congress to to interfere or regulate what the President does with persons he captures or detains (for example, through a ban on torture or an attempt to regulate military commissions) would be unconstitutional.

    Second, the January 2009 OLC memo disowns the statement in previous memos that FISA should be interpreted as not restraining the President’s ability to engage in warrantless domestic surveillance in order to avoid a potential conflict with the President’s powers under Article II. These memos argued in effect that FISA would be unconstitutional to the extent that it prevented the President from disobeying its limitations on domestic surveillance.

    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 decisionmaking, 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.

    Read it again.

    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 decisionmaking, 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.

    Does anyone still have any questions that, when Bushie remarked how things would go more easily if this country was a dictatorship, “so long as the dictator was me”, he not only meant it, but probably believed he was acting as one?

    That’s the kind of statement a President doesn’t make, unless he means it.

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