Yoo Issued an Opinion on 9/11 about Scrambling Planes

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Still reading through the Yoo side of the Esquire transcript. At times, it’s very frustrating, since Esquire gave only Yoo’s side of the conversation, without the questions. But by putting this passage of the final article…

So let’s go back to that moment in the heat of battle. The way Yoo tells the story, he was sitting at his desk at the Justice Department when the first plane hit the World Trade Center. He had only been working there two months, hired to answer the White House’s questions on foreign-policy laws at a time when the biggest legal issue before him was a treaty about polar bears. When the order came to evacuate Washington and people began heading out into the streets, someone from the attorney general’s office told him to stick around.

Soon the questions came:

Is this a war?

Do we need to declare war?

Can we scramble planes?

And again: Is this a war?

Together with these two answers from the transcript…

Yes, that was a question [Can planes be scrambled to shoot down any remaining hijacked aircraft]. That was earlier: Can we use force?

I must have. I can’t tell you what I said. No, I don’t think that’s actually public. Can you use force in response? What kind of force? What are the standards that guide the use of force?

I think it’s fairly safe to say that sometime on 9/11, Yoo gave an opinion about whether or not the US could shoot down remaining hijacked planes.

Only he’s not going to tell us what that opinion said.

The opinion is relevant, of course, because one thing Dick Cheney attempted to hide from the 9/11 Commission was that he–without consulting George Bush–issued an order to shoot down any remaining planes. He even tried (unsuccessfully) to get the 9/11 Commission to reverse its finding that Cheney gave the shoot-down order before speaking to Bush.

Now, Yoo’s opinion almost certainly came after Cheney issued the order and after he told Bush he had made it. According to Libby’s notes, Cheney issued the order between 10:15 and 10:18; according to Ari’s notes, Cheney informed Bush of the opinion shoot-down order at 10:20. In other words, Yoo’s opinion probably didn’t contribute to Cheney’s extra-constitutional order.

Still, it’s notable that they went to Yoo for such an opinion, presumably after the fact. And it’s notable that this is yet another of Yoo’s opinions they haven’t released.

Update: Read more →

John Yoo’s Non-Ephemeral Writings

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I’m reading the transcript of John Yoo’s side of the Esquire interview, and found this rather amusing bit.

Yoo explained that he had considered becoming a journalist. But didn’t do it because it was too ephemeral.

I gave a lot of thought to becoming a journalist. I was an intern at the Wall Street Journal under Al Hunt in the summer between college and law school. I gave that a lot of thought. It was very exciting. I had a great time. But there was something — no offense, but there was something about journalism that was very ephemeral. You write the story and then it’s gone and nobody remembers it.

I guess we ought to consider Yoo a success, then. Because it’ll be a long time before people forget his most famous writings. 

Why Drop Charges Against Al-Qahtani?

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The AP reports that charges against Mohammed al-Qahtani have been dropped, suggesting that charges were dropped because he was tortured.

The Pentagon has dropped charges against a Saudi at Guantanamo who was alleged to have been the so-called "20th hijacker" in the Sept. 11 attacks, his U.S. military defense lawyer said Monday.

Mohammed al-Qahtani was one of six men charged by the military in February with murder and war crimes for their alleged roles in the 2001 attacks. Authorities say al-Qahtani missed out on taking part in the attacks because he was denied entry to the U.S. by an immigration agent.

But in reviewing the case, the convening authority for military commissions, Susan Crawford, decided to dismiss the charges against al-Qahtani and proceed with the arraignment for the other five, said Army Lt. Col. Bryan Broyles, the Saudi’s military lawyer.

[snip]

Officials previously said al-Qahtani had been subjected to a harsh interrogation authorized by former Defense Secretary Donald H. Rumsfeld.

But that’s not right. After all, the remaining 5 detainees were also tortured. Heck, the government has even admitted to water-boarding Khalid Sheikh Mohammed. But he’s still going to get a show trial.

I would suggest that two things contributed to al-Qahtani’s charges being dropped. First, the disqualification of Thomas Hartmann last week may be related. As I suggested in my post on the disqualification, Judge Allred made clear that the charges against Hamdan could go forward because those charges were finalized before Hartmann came on the scene. But the charges in which Hartmann was directly involved–notably of the group of high value detainees that until Friday included al-Qahtani–would be affected. The government is now going to have to prove that those 6 5 detainees would have been charged even without Hartmann making decisions about whether to include evidence gained by torture.

Note that Allred’s decision is dated May 9, Friday, the same day Susan Crawford decided to drop charges against al-Qahtani, so if this was a response to the Hartmann disqualification, it was a very quick response.

But there’s another reason why the charges against al-Qahtani were dropped while KSM will still be charged: evidence that the torture against al-Qahtani didn’t reveal anything. Read more →

Just Making It Up on Classification

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A number of you have pointed to smintheus’ excellent post on Bush’s new classification, Controlled Unclassified Information.

On Friday afternoon, with George Bush in Texas for his daughter’s wedding, the White House finally released its new Executive Branch rules for designating and disseminating what used to be known as "sensitive" information. The most common term in the past for such material has been "Sensitive But Unclassified" (SBU), though there was an alphabet soup of competing classifications in various agencies. In part, the new rules create a uniform standard across the Executive by replacing SBU etc. with a new classification, "Controlled Unclassified Information" (CUI).

The Friday memo states that its purpose "is to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." The initial impetus for change came in a December 2005 memo in which Bush called for a new policy for information sharing between agencies. The alphabet soup of "sensitive" designations too often played into the hands of officials who sought to hoard information rather than to share it.

[snip]

Though the material to be regulated is nominally "unclassified", this new system is in fact a much more sweeping program for keeping information secret than the ostensibly higher grades of secrecy for "classified" material. And at the same time, the system for designating "unclassified" information is in significant ways far less regulated than for "classified" information. This new memo represents the opposite of reform.

I agree with smintheus that this classification is simply an invitation for bureaucratic games that result in less information sharing rather than more.

But at the same time, with the increasing evidence that it doesn’t matter what Bush says the classification guidelines are, key players in his Administration will just do as they please anyway, I’m not sure the CUI is the worst of our worries.

Consider the example offered by Bill Leonard in his statement for Russ Feingold’s April 29 30 [thanks selise] hearing on Secret Law. Leonard focused most of his attention on the improper classification of the Yoo Torture Memo authorizing the military to torture; he offered quite a striking soundbite about the memo:

To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.

But I found the details of Leonard’s discussion even more interesting. Read more →

Politicizing Show Trials at the Same Time as Politicizing DOJ

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Marty Lederman links to the important opinion disqualifying General Thomas Hartmann from any involvement in Salim Ahmed Hamdan’s–Osama bin Laden’s driver–military tribunal. (Kudos to Marty Lederman for thwacking the traditional media for touting an opinion’s limited availability–and then not providing a link to that opinion.)

As Marty notes, the opinion does much more than the traditional press coverage of the opinion lets on–though as always, Carol Rosenberg’s coverage of the show trials is quite good. The opinion basically affirms that the Gitmo show trials under Hartmann have been just that–trials driven by political motivations rather than legal evidence. Go read the opinion, written by Judge Keith Allred, for the timeline it offers of Hartmann’s (and others’) attempts to tailor the show trials to political considerations.

I’m particularly interested in the coincidence of timing the opinion reveals. The Bush Administration started crafting its show trials at precisely the same time–fall 2006–when it was engineering the firing of 8 US Attorneys for political reasons.

5. About 28 September of 2006, [Colonel Morris Davis] attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said "there could be strategic political value in getting some of these cases going before the [November 2006–editorial comment original] elections. We need to think about who could be tried" or words to that effect. The commission takes judicial notice that the Supreme Court issued Hamdan v. Rumsfeld in June 2006 and that the Military Commissions Act was not signed until late October 2006. Consequently, there was no possible way in which any military commission case could be referred, much less brought to trial, before the November 2006 elections.

[snip]

Colonel Davis viewed [England’s] remark as an opinion, rather than a command. Colonel Davis affirmatively denies that this statement had any effect on any decision he made with respect to Mr. Hamdan’s case.

7. During the same meeting, then-Under Secretary of Defense for Intelligence Mr. Steve Cambone opined that Department of Defense (DoD) attorneys were not sufficiently experienced to handle these cases, and that they needed to get some Department of Justice (DOJ) attorneys involved. Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams.

Read more →

I Don’t Think “Exclusivity” Means What John Yoo Thinks It Does

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I wanted to focus some attention on one tiny part of the interchange I highlighted yesterday. In the guise of explaining to Administraton apologist David Rivkin the Kafkaesque process by which he has gotten some of the Office of Legal Counsel’s opinions declassified, Sheldon Whitehouse revealed he has been trying to get one more opinion declassified–one relating to exclusivity:

I’d be delighted to show you the whole rest of the opinion [stating that the President tells DOJ how to interpret law] but I’m not allowed to. It’s classified. I had to fight to get these declassified. They made me take … they kept my notes. They then delivered them to the intelligence committee where I could only read them in the secure confines of the intelligence committee and then I had to, again, in a secure fashion, send this language back to be declassified. I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

Exclusivity, you’ll recall, refers to the language in the original FISA bill that requires that FISA be the only means under which the executive branch conducts domestic surveillance. Here’s Anonymous Liberal on exclusivity:

Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)–commonly known as the exclusivity provision–which states that the "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

It is through this provision that Congress made it clear that FISA’s warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework.

Now, as AL points out, the Protect America Act introduced a loophole by which the Administration could get around the exclusivity provision, one DiFi has been trying to ensure stays closed in the amended FISA, and which the Administration hopes to keep open. Read more →

Publicizing Pixie Dust

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Updated with Selise’s YouTube. Thanks Selise!

As a number of you pointed out in comments discussing Russ Feingold’s secret law hearing that took place while I was on my trip, NYT believes that Pixie Dust–the process by which the President can "modify" his own executive orders by simply ignoring them–has never before been publicized.

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation. [my emphasis]

By "unpublicized," I guess they mean "never before scarred a dead tree," because Sheldon Whitehouse gave a great speech about it, I wrote a whole series of posts about it, and Selise’s YouTube of Whitehouse’s speech got a whole bunch of views.

Which, I guess, is a great way to introduce the news I just got today: my Guardian column on Pixie Dust is a finalist for Project Censored from last year–one of the twenty-five most important but under-covered stories from last year.

Woohoo!

Which makes the following exchange all the more ironic. When I reviewed the Senate webcast from the hearing, I couldn’t help but appreciate the drama of Sheldon Whitehouse discussing the shoddy bases on which Bush’s three assertions of Presidential super-legality depend. As designated Adminsitrative Unitary Executive David Rivkin apologist tried to defend these opinions, he complained that he couldn’t see the whole opinion.

Uh huh. Now you’re getting it!

Here’s Whitehouse, describing the precedents on which these opinions rely (my transcript, all mistakes my own).

Then you see something like this [points to the Executive Order opinion]; I won’t go through it it’s been in the testimony already. That’s a pretty alarming proposition, that an executive order is just ignorable willy-nilly with no reporting. And when it became apparent that I was going to release this and I had it declassified, I was told it stands on precedent, and when they told me what the precedent was, the precedent was a Griffin Bell opinion that said the President can legally revoke or supersede an executive order at will.

Of course the President can legally revoke or supersede an executive order at will! There’s a process for doing that. That’s a completely different proposition than saying that the executive can use the executive orders of this country as a screen behind which they can operate programs directly contrary to the text of the executive order.

Read more →

The Flying Fur At OSC

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Many of you have been asking many different questions about the OSC kerfluffle. I am fairly deep into this now and hope to have a serious piece ready by tonight. Unfortunately, day job and spring family responsibilities (there’s a different school concert every night!) keep intruding. Tomorrow, there is actually one I am looking forward to; I get to help chaperone my daughter’s class field trip to tour, learn about and see in action the county courthouse.

Back to the OSC mess. This is just a short post to run by all of you my current thoughts and ask you to post in comments any links to new and probative information you have run across (for other topics too if they are really noteworthy). So, here goes.

Bloch appears to be a bit of a nondescript, but deeply religious, party level toady that they pulled out of the mid-west, to serve as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the U.S. Department of Justice. (Why exactly is there even such an office in the DOJ at all???). The Bushies then wanted to plug a Regent like theobot toady into the OSC, and decided Bloch fit the bill. Bloch then went about doing his job, which was effectively to do nothing and fill up the ranks with incompetent theobot types, just like they were doing all over the government and, as we know so well, especially the DOJ. But Bloch got a little ham fisted in his efforts to weed his office of teh gay in the process, which caused an amount of scrutiny and heat.

About that time, Bloch’s office started being forced into relevance because of all the Hatch Act violations and other things that the Bushies have done to create whistleblowers that are supposed to fall under Bloch’s office’s parameters. This created a confluence of events for Bloch; he morally/religiously really believes in his purge of teh gay and, just maybe, he actually has some moral convictions on the impropriety of much of the Bushco creed. So, he starts actually doing his job on the Bushco ills, just a little, both because he knew there were ills and to push back and protect himself for what he had done. Picture a John DiIulio and/or David Kuo that, instead of Read more →

Bloching Justice Or Obstructing Justice?

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As you may have seen by now, the FBI has executed a full blown raid on the office and home of Scott Bloch, the DOJ head of the Office of Special Counsel.

Federal Bureau of Investigation agents raided the Office of Special Counsel here, seizing computers and documents belonging to the agency chief Scott Bloch and staff.

More than a dozen FBI agents served grand jury subpoenas shortly after 10 a.m., shutting down the agency’s computer network and searching its offices, as well as Mr. Bloch’s home. Employees said the searches appeared focused on alleged obstruction of justice by Mr. Bloch during the course of an 2006 inquiry into his conduct in office.
…
Mr. Bloch has been under investigation himself since 2005. At the direction of the White House, the federal Office of Personnel Management’s inspector general is looking into claims that Mr. Bloch abused his investigative authority, improperly retaliated against employees or dismissed whistleblower cases without adequate examination.

You can read the original WSJ article here. The New York Times adds:

Mr. Bloch was in the news a year ago when his office began to look into political briefings given to employees of several agencies by aides to Karl Rove, who was then President Bush’s chief political adviser. The White House insisted at the time that the briefings met the definitions of allowable activities.

Mr. Bloch’s critics quickly accused him of announcing an inquiry into the Rove-inspired briefings simply to draw attention away from his own shortcomings. At the time, he was the target of a complaint filed by a group of employees who accused him of trying to dismantle his own agency, of illegally barring employees from talking to journalists and of reducing a backlog of whistle-blower complaints by simply discarding old cases.

The questions regarding this raid are just beginning, and the web of conflicts raised is absolutely endless. Here are some initial things to chew on and discuss as I delve further into the legality and propriety of this bizarre situration.

Is this Rove’s and Rachel Paulose’s attempt at revenge on Bloch for going after them? Asked by commenter Mogolori at Dkos.

Is Bloch a loyal Bushie who got pushed too far, and the Rove thing was just more than he could stomach, and he decided midstream to do the right thing? Asked offline by LHP. Decent question, but I don’t think it has my vote.

You don’t think this could distract Read more →

“It’s Not that Yoo Engaged in Really Bad Lawyering, Really It’s Not”

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I’m fascinated by this op-ed by David Rivkind and Lee Casey, arguing that we’re all beating up on poor little John Yoo because we believe international law should trump US law.

In truth, the critics’ fundamental complaint is that the Bush administration’s lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.

[snip]

That is why these administration attorneys have become the particular subjects of attack.

The central thrust of the op-ed is, of course, one giant shiny object. The role of international law has absolutely nothing to do with calls for Yoo to be held liable for his egregious opinions authorizing torture and warrantless wiretap. As I have pointed out, Looseheadprop has pointed out, and apparently Jack Goldsmith and other lawyers have pointed out, the problem was rather that Yoo ignored the key precedent in US law when he formulated his opinions. From Lichtblau’s book:

When Goldsmith and other Justice Department lawyers dusted off the early legal opinions on the NSA program, they were shocked to find that Yoo had not even factored into his legal analysis a seminal Supreme Court precedent on presidential power: the Youngstown steel case.

If I, a non-lawyer, can poke giant holes in Yoo’s legal opinions with a 30 second PDF search, then those opinions should clearly not be relied upon as valid. The question, though, is why the opinions were so shoddy: deliberate intent or incompetence? Using Rivkin and Casey’s assertion that Yoo is one of "the country’s finest legal minds," I have to conclude that the opinions are so shitty because Yoo could only authorize the things he did by ignoring US law–and that his effort to sidestep US law was indeed, an ethically and perhaps legally problematic act. The fact that Jack Goldsmith agrees with me about the shoddiness of these opinions–someone who fully agrees with Yoo about the appropriate role of international law in the US–proves that our complaints have nothing to do with international law.

So Rivkind and Casey are clearly trying to misrepresent to the WSJ’s readers what’s at issue here. Read more →