Surely They’ll Resort to Pixie Dust on This
MadDog linked to this while I was away at the dentist, but since I’m a big fan of both Secrecy News and of Bill Leonard, I wanted to highlight it in a post of its own.
Bill Leonard, who until Cheney chased him away last December, was the person overseeing the Information Security Oversight Office (making him one of the top people in the government overseeing the use of classification and declassification). He confirms what we’ve been saying: the classification surrounding the Torture Memo was improper.
“The disappointment I feel with respect to the abuse of the classification system in this instance is profound,” said Mr. Leonard, who recently retired as director of the Information Security Oversight Office, which reports to the President on classification and declassification policy.
“The document in question (pdf) is purely a legal analysis,” he said, and it contains “nothing which would justify classification.”
Beyond that crucial fact, the binding technical requirements of classification were ignored.
Thus, he explained: There were no portion markings, identifying which paragraphs were classified at what level. The original classifier was not identified on the cover page by name or position. The duration of classification was not given. A concise basis for classification was not specified. Yet all of these are explicitly required by the President’s executive order on classification.
“It is not even apparent that [John] Yoo [who authored the memo] had original classification authority,” Mr. Leonard said.
“All too often, government officials simply assert classification. To enjoy the legal safeguards of the classification system, you need to do more than that. Those basic, elemental steps were not followed in this instance.”
“Also, for the Department of Defense to declassify a Department of Justice document,” as in this case, “is highly irregular,” Mr. Leonard said.
(The DoD declassifier mistakenly cited “Executive Order 1958″ on the cover page of the declassified memorandum. The correct citation is “Executive Order 12958, as amended.”)
Violations of classification policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded. Nevertheless, such classification violations are significant because they enabled the Administration to pursue its interrogation policies without independent scrutiny or accountability.
“To learn that such a document is classified has the same effect for me as waking up one morning and learning that after all these years there is a ’secret’ Article IV to the Constitution that the American people did not even know about,” said Mr. Leonard. [my emphasis]
As MadDog pointed out, these are some of the same issues we’ve been discussing in threads:
- The document should not have been classified "Secret"
- If it were to be classified "Secret," someone should have gone through and done a paragraph by paragraph analysis of what was "Secret"
- The memo lacked a number of other required items–original classifier, duration of classification, and rationale for classification
- DOJ was the owner of the document, but DOD declassified it
- Daniel Dell’Orto mis-cited the Executive Order by which he declassified the memo
I suspect we will learn there are reasons for all these irregularities of classification and declassification. Or rather, I expect the Administration will give us the same bullshit excuse every time someone points out that the whole damn executive branch is in violation of the executive branch’s own EO on classification and declassification. You see, according to the same OLC that wrote this bogus memo (and almost certainly, that means according to John Yoo), the Administration doesn’t have to abide by its own Executive Orders. (Though it should be noted, the Bush Administration revised the Executive Order in question within days of the publication of the Torture Memo, on March 23, which means it didn’t even comply with the brand new Executive Order written contemporaneously with the Memo!) So BushCo can do whatever it wants to do with classification and declassification, and then say, after the fact, "well, the President didn’t intend Bush Cheney John Yoo to have to follow the rules."
And voila! We’re in the recursive position where John Yoo (probably) wrote an opinion allowing George Bush to throw Pixie Dust on his own Executive Orders so that John Yoo’s shoddy legal opinions never see the light of day!
You like how that works?
My guess is because they are hamfisted idiots. If issue of torture didn’t stop them, what makes you think that rules of declassification would? At the same time, these are guys who couldn’t organized a two car parade. So their screwing up anything they touch is pretty much a given.
YEA Mad Ogs!
Lying their way into Iraq
Warrantless Wiretapping
National Security Letter Abuse
Political firings from the DOJ
Perjury
Botching Katrina
Secret Torture Memo for the Military
Torture
Destruction of torture tapes
Disregarding the 4th Amendment for Domestic Military Operations
Improper Classification
Michael Mukasey lying about how FISA made us unable to stop 9/11
Seems like nothing is ever going to stick to these guys….
The fact that this memo got pried into view is an indication that the supply of pixie dust in DC is starting to disappear.
As often as Bush has been using it, that’s not exactly a surprise.
I think even the Goopers have stopped clapping and Tinkerbell’s getting disgusted at what they’re using her pixie dust for. Soon they’ll to use it to fly away. They ought to remember that the Tick, Tock betrays the croc’.
This whole torture and secrecy thing is just a bunch of people playing dumb.
bmaz posted this downstairs, which may be more than a little relevant on this thread as well:
* * *
If nobody has linked it before, here is a Q & A with Yoo from the new Esquire bearing today’s date.
Some interesting stuff in the Q & A
The classification standards used here resemble Cheney’s: because I said so. No doubt, that’s why Big Dick claims immunity from the orders and law requiring him to account for his classification practices, his records retention practices, or even disclosing who works, on the public’s dime, for him in the White House or Senate.
No competent chief executive would permit such poor leadership, mismanagement or abuse; but then George isn’t really acting as president, is he? That vaunted Harvard MBA seems about as useful as a lapel pin.
Based on the declassification, should we assume that it was Haynes that classified this document?
I’m not sure it’s clear. I think Leonard’s saying it’s DOJ’s document, so DOJ should have classified it. But if DOD declassified it, does that mean DOD actually classified it?
TPM interviews Lichtblau.
Sloppy incompetence and misuse of power.
SO?
OT, but on point from an earlier thread, Reuters reports that Senate Democrats are caving on Durbin’s proposal that bankruptcy law reform be the price the GOP must pay in exchange for a taxpayer bailout of the credit industry’s “subprime” mortgage crisis.
I smell another letter writing campaign.
Earl check out summary here.
(And bmaz @14)
I smell another letter writing campaign.
Yes. An opportunity might be Barney Frank’s Financial Services Committee hearings next week on the House re-insurance proposal.
FWIW, the Post article does a good job of making clear how utterly useless, as Dean Baker put it, the Senate “compromise” is.
I feel a kinship with Leonard on this one. If you procedurally spell out how classification works (as EO 13292 does) and, along with it prohibiting classification of illegal Exec Branch behaviour, the EO requires that, in order to be “classified” the document must refer to the parts of Sec 1.4 of the EO that it is classified under – and it doesn’t – that’s a big tipoff right there that you don’t truly have a classified document, any more than writing “SECRET” in purple crayon on a Peanuts comicstrip makes it, in fact, a federal crime to watch Lucy snatching the football away again.
6 – and on the Zubaydah front, Yoo seems shy and reticent about explaining WHY it became such an issue with Z. Suskind spells it out a bit more.
NSA et al had thought that bc Z’s name appeared in sigint a lot, he must be a big whoopdy poohba. Unfortunately, his name appeared a lot bc he was more, as Dan Coleman (who doesn’t ever seem to hide away as an *anonymous* source and who is someone that you would be proud to have represent this country on any front) noted, a “greeter” who made arrangements for people’s families while they were jihading and things like that, but not someone who knew a lot about operations.
Z’s primary value was in all his info that they took with him originally, and possibly would have been also tied to some painstaking graphing of relationships that might have emerged from careful, thorough questioning over time. One hindrance being that he was certifiably nuts and had three separate personalities.
However, in the glee at originally getting Z he was oversold to Bush, who (rather than stamping the whole thing “secret” and staying quiet to prevent al-Qaeda from knowing that we had Z untile we could try to develop some inte) went out and made a speech about catching the number 3 guy in al-Qaeda (interspersed with some “love me love me love me” pauses for applause).
So when they milked the cream off early on and now were left with a very wounded crazy guy (and a perplexed WH, that couldn’t understand who had authorized pain medication), Bush got agitated that his “number 3 guy in Al-Qaeda” speech was hanging out there with no positive results he could link to it. So Bush put the pressure on – – – Tenet, don’t let me look bad, make me look good.
So the issue of torture came up in connection with Zubaydah, not in some setting of a need for particular info from him, but rather because Bush wanted them to somehow squeeze something out of Zubaydah that would make Bush look good.
But Yoo is pretty cutesy to say that Goldsmith didn’t issue an opinion of his own. Let’s face it, if Goldsmith had – what would have happened to those who relied on Yoo’s memo?
Nothing. Captain Jack, He of the Law of the Sea, would finesse some crap to admit what honest good faith actions everything was, thus covering everybody’s ass.
10 – And ““It is not even apparent that [John] Yoo [who authored the memo] had original classification authority,” Mr. Leonard said.”
Neither Yoo at the OLC office of DOJ, nor Haynes as Gen Counsel for the Pentagon, may have had the original classification authority, if you got to figuring out which dept classified to start with. So did Bybee or Rumsfeld or Ashcroft classify? Or delegate?
It’s a mess.
If Kmiec doesn’t think that could be called “sloppy” and that it instead offers up some nuances – I think we should start looking for his Hanni 1, Hanni 2 and Hanni 3 journals.
Is it starting to smell like Cheney/Addington have Rumsfeld’s signature for cover?
Are there two Haynes – one was Rumsfeld’s counsel and one who was General Counsel of the Pentagon? Or is this the same person? I ask because Dianne Beaver says “Jim Haynes, Rumsfeld’s counsel” was at the honcho storm in Gitmo on September 25, 2002.
Same dude. William James Haynes
At@16, “finesse” seems about what the checks and balances concept was trying to remedy. It is nice Leonard’s experience is recent and extensive on this matter.
In my work on the distant periphery of sausage fabrication of law there was a strong demand for dissimilation from many cronyist quarters. Recently I have been reviewing a topic which attracted my studies, toxicology. The Bush philosophy is to shift the statistics so the measurements already on the books are invalid because the reference points force realignment of interpretations and licitude. A recent report by UnionOfConcernedScientists, for example, reveals what FDA refused to disseminate in its guidance to industry in a January 15, 2008 ruling on the abolition of a labeling requirement for foods sold with cloned contents. UCS, but compare FDA. The foregoing material is OT prima facie, but theBushCo m.o. is the same. TPMM’s Lichtblau interview includes a clever image of the bookcover, looking like the four principals belong on the cover of a cd for a rapper ensemble. The Kmiec effort today at Conviction blog atSlate is a classic partisan snipeEffort.
Going back to the “quaint” Geneva conventions memo from Gonzales to Bush and the language that none of the news focused on (about war crimes), the setting is that supposedly OLC has generated a memo that says al-Qaeda and the Taliban are “unlawful enemy combatants” and as such are not covered by Geneva Convention III on the Treatment of Prisoners of War, referred to as in the memo as “GPW”
http://www.hereinreality.com/a….._memo.html
Powell at State fired off a responding memo and objected. For one thing, Powell points out, if you pick them up from homes or by buying them, etc. you don’t even know if they ARE al-Qaeda without having a hearing first (the Geneva conventions are in agreement with him on that)
Per Gonzales:
Gonzales then “outlines the ramifications of your[Bush] decision and the Secretary’s[Powell’s] request for reconsideration.”
To start with, Gonzales sounds pretty concerned about this concept that you would need a case by case hearing before you could treat someone as an illegal combatant and offers up the following as his rationale for why that wouldn’t be necessary:
” By concluding that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need for case-by-case determinations of POW status.”
Isn’t that easy? And very very circular? Determining al-Qaeda doesn’t have GPW protections means you don’t need a hearing to figure out if someone is al-Qaeda before you engage in depraved acts involving them??
Do you get the feeling he’s trying pretty hard to get around the problem that they have ALREADY taken people in and been treating them outside the GPW protections without those hearings and that history – rather than the prospective Afghan invasion, is what colors the response there?
Then he moves on to the War Crimes Act. He says that a determination by Bush, ahead of the invasion of Afghanistan that al-Qaeda is not covered by the GPW,
Think about that. We haven’t gone in yet – the military hasn’t treated people as either covered or not, yet Gonzales says with some assurance that there is an threat of domestic crimnial prosecution under the War Crimes act that will be reduced if we just adopt the fiction that al-Qaeda is not covered by GPW and we don’t need a hearing to figure out if someone is al-Qaeda before we start abusing them.
Gonzales then advises the President:
I’ve always read that as a slyly worded “here’s your chance to cover all our asses on what we’ve already done” document and I have to think some of the OLC input was asked for in that context.
Also,with respect to the “Secret/Noforn” reference on Yoo’s opinions, indicating they didn’t want our allies to know how we were interpreting our interrogation obligations, put that in the context of these “concerns” from Gonzales’ memo:
So let’s become a global sponsor of torture and lie about it, ‘kay?
And with respec to Yoo’s wide eyed, “how could anyone have predicted”
When you have to look to Alberto Gonzales to lead you out of the tall weeds, Yoo really are lost.
Had a funny experience today reviewing the morphing quaint CA3 regime of international law at UNHCR site: when clicking on the link to view the status of the currently active ratifications, suspecting Bush may be trying to withdraw formally rather than engage in polemics against that world treaty, the ratifications link on that page lands the visitor in a firewall which demands id and a password.
Good.
When you pick them out of their homes or buy them from Afghan warlords who would sell anything but their rifle for cash, you have no idea whether they are “combatants”, “enemy combatants”, or “unlawful enemy combatants”. Not a clue. At best, you have suspicions, which in many cases may not be reasonable suspicions because the process you’ve used to acquire these “suspects” is so flawed.
Which means that detaining them alone is questionable, much less without a hearing, and even less while depriving them of civil rights or reasonable treatment. Torturing them is per se criminal on the jailers part.
This is wild west justice, shoot first, never ask, bury ‘em beneath the cattle drive. Just what does Mr. Bush imagine himself president of, the Bar None Ranch?
The Krawford Kattle Kompany? Except, you know, without the cattle….
Little W’s apparently visibly afraid of horses; I guess that’s why he has no doggies to drive to market. The KKK has frequently been described as a faux ranch, bought just before the 2000 campaign in order to transform this decidedly suburban, Maine vacation home candidate’s image into a dusty, down home, local boy. I think it was Molly Ivins who punctured that myth in her customarily discreet language.
Given Gonzales’ background in Texas shopping center law, and his complete lack of experience in national security law before coming to Washington, odds are pretty high that “his” advice on these matters is regurgitating someone else’s.
That’s often the case where an executive is responsible for multiple areas or disciplines. But in Gonzales’ case, he would have been seriously handicapped in exercising independent judgment about the merits of the law, arguments manipulating it, and proposed courses of action based on them. He would have parroted advice from someone else, glossed by his determined efforts to be subservient to his old boss from Texas. Earlier narratives suggested Addington as the source of advice in all these matters.
Plus Bushco had another touchstone in Miers’ who had background with games of chance in her official capacity having directed the TX state lottery, to supplement Gonzales’. That’s underpopulated territory on that range.
You are correct! See my #39 above.
I got news for you, AG² isn’t competent to write an opinion on strip mall shopping cart retention programs; much less national security.
To be fair, Martindale’s listing of Gonzales suggests he had expertise in oil and gas law, too, which would have been essential to the competent practice of real estate law in Texas.
To be fair, Martindale’s listing of Gonzales suggests he had expertise in oil and gas law, too, which would have been essential to the competent practice of real estate law in Texas.
A more confidant executive lawyer than Gonzales would have hired top notch constitutional and national security juniors – loyal to him – to advise him. The consistent narrative is that Gonzales punted, caved to the ominous presence of Cheney and Cheney’s dominance over Bush, and relied on Addington, Cheney’s lawyer and longtime aide.
The lawyers in Houston I have spoken with say Gonzales is barely competent to put his socks on in the morning.
Just so you know, I’m stopping myself from replying with the rejoinder “He wears socks?”
The “incompetent” Gonzales was a partner at a major Houston law firm, non? So affirmative action is bad only when it doesn’t involve “our” guy?
It’s supposed to identify potential excellence that, but for it being affirmatively sought out and promoted, would be stunted amid routinized prejudice and exclusionary practices. The one-time quotas against Jews and blacks at waspy Ivy league schools is often cited, but the reason affirmative action received popular support is because prejudice was practiced widely throughout society.
Ironically, Clarence Thomas’ early career exemplifies it working well, though he hates the association because he thinks it means he didn’t earn his success. What AA really prevented was the then likely result, that regardless of his talent, the opportunity to realize it would have been routinely denied him because of his skin color. That doesn’t, however, mean he was remotely qualified for the Supreme Court when compared with other African American, Hispanic or women candidates then available.
I consider his appointment an example not so much of the Peter Principle, but of the principle that there were so few top-notch African American lawyers who thought allying themselves with the GOP was a responsible thing to do.
Well, he does have a law degree from Harvard, but he sure looks slow on the uptake to me.
It’s the congenital obsequiousness that bothers me. I’ve seen it before; often it hid a steely resolve and thoroughly detailed approach to work. In others, like Gonzo, the obsequious was all there is. He knows how to chat and smile, gets work off his desk faster than it gets there because he doesn’t read or understand it; he just knows that the answer is always, “Yes, you can.”
Another superb dissection Mary, however I would add one caveat. From last year’s Barton Gellman and Jo Becker article in the WaPo “A Different Understanding With the President” it appears the real author of the “Gonzales” memo was none other than the Dark One’s Chief Sorcerer, David Addington. Fredo was the simply the
Court JesterMessenger:I urge everybody to read the Lichtblau link @11 above.
Also, Conyers writes letters read blogs (either Greenwald or Digby). Again. Wants to talk to Mukasey about the bogus tear filled statements in Frisco.
In July, 2006, what were Goldsmith, Thompson, Comey and Philbin saying about Haynes?
http://balkin.blogspot.com/hay…..letter.pdf
And who should know better than these guys, right? They very bravely and forthrightly spell it out:
LOL – If you think that the Yoo opinion is a bit “shoddy” on the legal analsyis, stack this candygram up against what is said by Mora, Brant, Beaver, etc. I particularly like the “even those techniques” reference, as if oking a set of 18 procedures that, singly, each violate the UCMJ and Geneva Conventions etc. , and approving them without restrictions on combinations and duration etc. – – golly, when “even” taking an 11 yo and stripping them, hanging them in a stress position, subjecting them to sleep deprivation for months and months, and inducing repeated hypothermia – all without any hearings to even know if the kid was al-Qaeda, when EVEN those things made some of those unreliable JAGs get all prissy, poor ol brother Jim drug back to Rumsfeld and made him put a bonnet on the cat and lipstick on the pig, just to make those malcontents happy.
Wonder where they got that “understanding” but apparently where Yoo says the OLC opinion only tells them what they CAN do, not what they SHOULD do, umm, not so much. After all it’s “wrong” to criticize “Jim” for telling the working group they should accept the analaysis, bc “the opinions of the Office of Legal Counsel are binding on the Executive Branch.”
So, you can’t criticize “Jim” for telling them they SHOULD do what Yoo and Philbin and Goldsmith only meant they COULD do, bc by saying they could, they meant they should, or something like that. Amazingly razor sharp input.
[insert 3 playings of the national anthem, superimposed with the sounds of the law abiding torturers and their torture victims – all stand for the playings]
YEAH!!!!!!!!!!!!!!
Comey for Attorney General! Goldsmith for President! Thompson and Haynes for Supreme Court! Philbin for undersecretary in charge of Jackson’s pictures at HUD!
warm meet fuzzy
23 – I had several dead end links when trying to get that Gonzales memo too, plus one that wanted regisration before access. I remember when it was pretty easy to access.
24 -Olberman and Maddow did a piece on that too. Very good piece, youtube link was up in a kos diary yesterday
Would it be logical to think that Goldsmith, Comey, Philbin or Thompson know how Yoo got the authority to write an OLC formal opinion?
They seem to imply that they KNOW Yoo had the authority to write that memo and that Haynes just accepted “a legal analysis presented by the Office of Legal Counsel of the Department of Justice concerning the application…”
It is safe to say that they assume they know; the better question is whether there is really a proper designation/authorization extant that truly supports said assumptions.
From earier thread – earlofhuffingdon
“Yoo was not the AAG or acting AAG at the time this memo was signed and released by him. He had no authority to issue it. Its interpretations of US law were not valid or binding on the executive branch, though Haynes and others relied on it. “
Esquire: Ashcroft saw it?
Yoo: He approved it.
It sounds like Ashcroft made Yoo acting AAG at some point. When Yoo says “He approved it” might mean that Ashcroft approved authorizing Yoo to write it (and didn’t approve “it” per se).
Yes, I saw that Yoo claimed Ashcroft “approved” his memo. Ashcroft certainly had authority to do that, but as Yoo repeatedly says in another context, where’s the evidence, including Ashcroft’s confirmation?
Normally, it would be clear from the face of the document. My recollection is that the heading on its first page clearly indicates it was prepared by the “Deputy Assistant Attorney General”, an officer plainly lacking the necessary authority.
And what is it that Ashcroft approved, if anything? Did he see it? Sign it? Retain a copy? Was his approval only oral? Was it informed by the full text and background from the original request? And what was the nature of that? A phone call, briefing, written request, chat over squash at Rumsfeld’s gym? An opinion can only be painted on the canvas of the language of the request and information reasonably inferred from it.
Too much we don’t know, and too much history, to take Yoo or anyone from this administration at their word.
oops huntingdon, sorry.
At@35 He might figure it out after enduring the shortsleeve arm scratches of clearing pinon for a few substantially long sessions. My experience is some folks cotton to it, others stick to cruising the outbacke from the polarity of their atmosphere-regulated pickups. From the photos of the former camp freedom up the highway available a few years ago, it looks like pretty country. I have done a lot of that work on our place. I would give him a few years after he leaves WA-DC as a litmus; too many distractions while hosting a lot of folks in modern duds.
EW – When I re-read your Dec. 7th Post on Sen. Whitehouse’s review of the OLC Opinion that ‘offically sanctioned’ the Pixie Dusting of all the EOs, it made me realize just how insidious Bush and his Henchpeople are willing to be:
Yoo and Addington had ‘found’ the best place to hide all of their Criminality: In the space behind the Facade of Integrity of the Executive Orders of the President of the United States, where once was ‘the Law’ – poof! – now sits a Secret Cabal of Bush Loyalists, “in the know” and “Above the Law.”
Addington and Yoo crafted the lever that works the Curtain for Oz, and behind it, All the Henchpeople Loyally Slave Away, in Secret, for Bush’s Ideological Agenda – the one ‘We the People’ have No-Say in.
Why? Because Yoo’s (formerly) Secret Opinion, ordered up by Bush, says so.
It was pointed out earlier that the Yoo torture memo came out on a Saturday in a very fast pace given how long it is (90 pages?), as if someone had already started it before Yoo was brought on board. More Addington handywork?
Marty Lederman corrected himself. Jay Bybee was still the head of the OLC when Yoo Two came out, and it came out on Friday, not Saturday.
Gotta wonder who’d hire the schlep now? Wingnut welfare is probably all that’s left for him.
31/39 – well, yeah that – plus the point was just a reiteration of the one that Powell and his counsel had made over and over, not an original point. I was being a bit facetious. I guess Addington/Gonzales felt they had to make a play at putting it in or Powell would hammer over it being left out. It was still early days in the Bush corruption of DOJ and Addington was probably being a bit more careful back then, and he decided that the memo might need to at least take a stab at pretending it considered Powell’s point.