Pixie Dust and Cheney’s Assassination Squads

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A number of people, in their discussion of Sy Hersh’s revelation that Dick Cheney directed assassination squads, look to EO 12333 for some guidance on whether such assassination squads are legal or not.

Here’s attytood:

By the way, in case there’s any ambiguity on the subject, President Gerald Ford in 1975 signed an executive order that said this: : "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." It’s been upheld by every subsequent president. Apparently vice presidents are another matter.

And here’s Scott Horton:

The practice of targeted killings is controlled by Executive Order 12333, issued by President Reagan in 1981, which provides “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” There are two exceptions to this rule. One is that as a basic principle of the law of armed combat, it is permitted to strike against the command-and-control apparatus (including both political and military leaders) of a hostile force in connection with armed conflict. The other is that the President may, by special action, authorize such an operation. The operation that Hersh describes almost certainly would have required a presidential finding which concluded that it was in the nation’s national security interest, and authorized the operation to go forward. Hersh suggests that the entire process was delegated to the Vice President, however, which may have required a more extensive modification of E.O. 12333. President Bush issued a complete revamping of EO 12333 on July 30, 2008—and he directed that the details of his revision be withheld from the public. The publicly disclosed text of Bush’s action in 2008 focus on a structural reorganization, bolstering the authority of the intelligence czar, largely at the expense of the director of central intelligence. There has been continuous speculation that Bush also made changes in the operational guidelines on this occasion, or perhaps in an earlier secret order or finding.

Of course, both these discussions assume Executive Orders mean what they say.

But we know they don’t, necessarily. We know that the OLC told George Bush (almost certainly back in 2001 when he was first inventing excuses for his warrantless wiretap program) that:

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Read more →

Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

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Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

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Unemployed Bush Lawyers and the OPR Report

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Let’s do some math.

First, the NYT reports that, like Alberto Gonzales, David Addington is also facing some career challenges. 

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

Next, Scott Horton reports on the upcoming OPR report detailing John Yoo and Steven Bradbury’s unethical conduct in craft OLC memos to justify torture. The report, apparently, focuses on contacts between the White House and OLC.

Sources at the department who have examined [the OPR] report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture. [my emphasis]

Earlier reports had mentioned some surprise among observers that investigators had included the contents of emails, which makes me wonder whether the White House’s so-far success at eliminating emails from other periods–like September-October 2003–when they were breaking the law didn’t extend as far back as 2001 and 2002.That is, I wonder whether the surprise had as much to do with the fact that OPR managed to get emails between the White House and Yoo, as with the emails themselves.

Now, right off the bat, I can think of some dates that might make this more interesting. The warrantless wiretap program started in early October. But they were still writing new memos to authorize it (and eliminate the Fourth Amendment) for several months after the fact (though the OPR investigation into wiretapping is separate). They started torturing Abu Zubaydah before August 1, 2002, when Yoo’s first memos came out on it (I suspect the third still-classified memo may retroactively approve the earlier torture). And DOD started the torture regime before authorization for that went up the chain of command.

There are already a few memos where we know the illegal program started, only to be followed by a Yoo memo authorizing that program (there’s an August 1, 2002 one that I suspect may retroactively Read more →

Tell Us How the Signing Statements Were Used

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Charlie Savage has an article reporting–first of all–that Obama has warned those in the executive branch to check before relying on one of Bush’s Presidential signing statements. (h/t BSL)

President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

Savage (who of course wrote the book on this stuff) goes on to explain the background of Bush’s abuse of signing statements, and to note that Obama says he will use signing statements, "with caution and restraint" (whatever that means).

Here’s Obama’s memo, and some excerpts:

I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:

  1. The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
  2. Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
  3. To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
  4. I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.

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John Yoo’s Wrestling Match with the First Amendment

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Among his other specious attempts at self defense in this column, John Yoo claims,

The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment’s requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right." The Court continued: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

Our memo had nothing to do with the First Amendment.

Pot, Kettle

Understand, one of Yoo’s central strategies in this memo is to strip the 2001 AUMF out of the context in which Congress specifically refused to authorize the use of "appropriate force" in the United States. Stripped from that context, Yoo claims in the memo that the AUMF explicitly allows for the "domestic use of force."

Section 2 [of the AUMF] authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or person. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." … This broad statement reinforces the War Powers Resolution’s acknowledgment of the President’s constitutional powers in a state of national emergency. Like the War Powers Resolution, [the AUMF] does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, [the AUMF] contemplates that the domestic use of force may well be necessary and appropriate. For example, [the AUMF’s] findings state that the September 11 attacks "render it both necessary and appropriate that the United States … protect United States citizens both at home and abroad." (emphasis Yoo’s).

By focusing on a "single out-of-context sentence," Yoo claims Congress authorized something it specifically refused to do–authorize "all necessary and appropriate force in the United States and against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" 9/11.

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The FISA Dance in the Wake of 9/11

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Looseheadprop asks some good questions about the September 25, 2001 opinion on FISA David Kris requested from OLC.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The question Kris asked, 

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

… presents a ready answer for the timing. After all, Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress from October 23 to October 26, 2001 ("the purpose" became "a significant purpose").

Change in certification requirement for electronic surveillance and physical searches under FISA from “the purpose” being gathering of foreign intelligence information to “a significant purpose” being gathering of foreign intelligence information.

Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA, 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are amended to strike “the purpose” and to replace it with “a significant purpose.” As amended, under Sec. 104(a)(7)(B), in an application for a FISA court order authorizing electronic surveillance, a national security official must certify that “a significant purpose” of the surveillance is to gather foreign intelligence information. Similarly, in an application for an order authorizing a physical search under FISA, a national security official must certify, under the amended Sec. 303(a)(7)(B), that “a significant purpose” of the search is to gather foreign intelligence information. This has been interpreted to mean that the primary purpose of the electronic surveillance or physical search may be criminal investigation, as long as a significant purpose of the surveillance or search is to gather foreign intelligence information.

And the admission in the memo that "most courts have adopted the test that the ‘primary purpose’ of a FISA search is to gather foreign intelligence" may be the reason the PATRIOT Act ultimately included the modifer "significant" on "purpose." Thus, it seems that Kris was using this memo to prepare more general changes to FISA to make it easier to use intelligence information in criminal prosecutions (as LHP points out).

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Sheldon Whitehouse Destroys David Rivkin’s “Gallery of Horribles”

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As I liveblogged here, the Republican response to Pat Leahy’s proposal to have a Truth Commission on Bush era crimes is to establish a set of straw men and then shoot them down, without ever addressing the problem that a number of high level Administration officials broke the law.

This exchange between Sheldon Whitehouse and designated Republican shill David Rivkin gets to the key aspects of tactic. Rivkin repeatedly introduced his own assumptions into what the Commission would do, all so he point to the constitutional challenges that only his imagined committee would have. And repeatedly during the hearing, Rivkin claimed the whole point of the commission was to select 12 to 13 high level officials and lay out the evidence of their criminal culpability.

I’m curious, though. If Rivkin has such an exact number of Bush Administration officials who broke the law, why hasn’t he called them out himself as prosecution targets? Or has he simply put his Republican affiliation before our Constitution? 

And isn’t it charming that Rivkin is so concerned about the civil liberties of those who in 37 pages claimed to eliminate both the First and Fourth Amendment?

Here’s my liveblogged transcript (with all the errors that implies):

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

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Senate Judiciary Hearing on Truth Commission Liveblog

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Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas-Pickering-140_23908t.jpgThomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

gunn.jpgVice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

Farmer.jpgJohn J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

schwarz.jpgFrederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

Photo_06c45eaa5e2d481dbf2a4cf3513a6.jpgDavid B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

rabkin.jpgJeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

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Scott Shane’s Love Affair for Dick Cheney and Kit Bond

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The NYT’s Scott Shane presents what pretends to be a comprehensive review of the options for some kind of investigation into Bush era crimes. He reviews four options–a criminal investigation akin to Lawrence Walsh’s Iran-Contra investigation, a congressional investigation akin to the Church Committee, a bipartisan investigation akin to the 9/11 Commission, and nothing aside from currently investigations like the OPR review of Yoo’s and Bradbury’s advocacy on torture.

But there are two very disturbing aspects to his story. 

First, in a review of options for holding what we all know to be Dick Cheney responsible for shredding the Constitution, why would you present such a selective picture of Dick’s own history with efforts to hold Presidents responsible for violating the law?

Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.

That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.

[snip]

But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.

Shane’s claims about Cheney’s views are odd. He bases his characterization on no quote from Cheney, though many are readily available. And his first description–the claim that Cheney’s "precise view" of the Church Committee was that it was really about an "unseemly and dangerous drive to pillory the [Nixon?] administration and hamstring the intelligence agencies"–seems to contradict his later more accurate claim that Cheney believed the Church committee improperly constrained Presidential powers. Which is it? A personalized attack against one administration and the targeting of intelligence professionals or an attack on Presidential power? Or is Shane suggesting that Cheney’s view of any investigation now would be an attempt to pillory the Bush/Cheney Administration, which is a different stance than his prior position regarding investigations of Presidents?

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Are Your Members of Congress Supporting an Investigation into Bush Crimes?

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As many of you have noted, at least 62% of Americans support some investigation into Bush Administration crimes (whether a criminal investigation or a truth commission). Do your members of Congress agree with the majority of Americans who refuse to ignore the past?

Here’s a list of those members of Congress who have voiced some support for an investigation. If your members of Congress aren’t on here, call them (1-877-851-6437, 1-800-828-0498, or 1-800-614-2803). Ask if they support one of the efforts to investigate the Bush Administration. If they’re not sure, urge them to do so. Please leave a comment so we can track what they say.

Senators

Barbara Boxer
Russ Feingold
Pat Leahy
Carl Levin
Jack Reed
Harry Reid (?)
Sheldon Whitehouse

Congressmen

(Unless otherwise noted, these are co-sponsors of John Conyers’ bill, HR.104, calling for an independent commission.)

Tammy Baldwin
Rick Boucher
Steve Cohen
John Conyers
Elijah Cummings
Peter DeFazio
William Delahunt
Keith Ellison
Bob Filner
Barney Frank
Raul Gijalva
Luis Gutierrez
Maruice Hinchey
Sheila Jackson-Lee
Hank Johnson
Walter Jones
Barbara Lee
Carolyn Maloney
Jerrold Nadler
Ed Pastor
Nancy Pelosi
Linda Sanchez
Jan Schakowsky
Bobby Scott
Debbie Wasserman Schultz
David Wu