Yoo and Academic Freedom

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Via Marty Lederman, John Yoo’s Dean, Chris Edley, writes a provocative (though unsurprising) letter regarding John Yoo and academic freedom (h/t scribe). I’ve interspersed some comments and questions between the excerpts below.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

As I’ve shared with a number of people in comments before, I had a conversation with the Provost of a prestigious private university recently; we spoke about his efforts to ensure the law faculty included good, but conservative, thinkers. I raised Yoo and it was clear that Yoo has become every Dean’s worst hiring nightmare–the young, controversial, but apparently brilliant academic who goes on to do horrible things in government after he has gotten tenure. This whole question would be different, after all, had Yoo not had tenure before he had written these memos.

That said, I’m disappointed that Edley didn’t say more about my biggest worry: Yoo’s teaching. It’s one thing to keep a controversial scholar on faculty because of academic freedom. It’s one thing for that scholar to (as Edley describes elsewhere in his memo) air unpopular views. It’s another thing to have someone who–more than anyone save David Addington on Bush’s legal staff–assaulted the Constitution, doing real damage in the short and potentially long term.

It’s one thing to guard Yoo’s right to write controversial academic articles. It’s yet another to have him teach future lawyers Constitutional Law.

So I’m curious how Edley measures Yoo’s teaching when he compliments it here? Is Yoo well-liked by students? Challenging? Rigorous? But just as importantly, is he teaching future lawyers to do as he has done, deliver the goods for the client even if doing so fundamentally conflicts with the Constitution? Is Yoo training the next generation of lawyers who will approach the law and the Constitution itself with a utilitarian attitude? Do students like Yoo because he teaches them to be the best sophists they can be? I don’t know the answer, but I’d sure like to.

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Who “We” Included in the Torture Briefings

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rincewind made an important point in my post on the torture briefings. At least one of the sources for the story must be one of the briefees, not a briefer. rincewind points to these two quotes that come from someone within the committee.

“It kept coming up. CIA wanted us to sign off on each one every time,” said one high-ranking official who asked not to be identified. “They’d say, ‘We’ve got so and so. This is the plan.’”

[snip]

“These discussions weren’t adding value,” a source said. “Once you make a policy decision to go beyond what you used to do and conclude it’s legal, (you should) just tell them to implement it.”

This source obviously considers himself as one of the people receiving the briefing, which further suggests this source is not in the CIA.

As luck would have it, via Troutfishing’s diary and this McGovern piece, I checked out this February 7, 2002 memo in which Bush declares that Al Qaeda will not be entitled to Geneva Convention protections. The memo seems to indicate that it is addressed to all the people who have participated–at least thus far–in discussions on torture; it refers to "our recent extensive discussions regarding the status of Al Qaeda and Taliban detainees." Now check out the list of addressees:

Dick Cheney
Colin Powell
Rummy
John Ashcroft
Andy Card
George Tenet
Condi Rice
Richard Myers

In other words, two of the people whom Bush noted as being involved in "extensive discussions regarding the status of Al Qaeda and Taliban detainees" are not included in the list ABC News gave of the attendees of the meetings that took place slightly later in 2002: Andy Card and Richard Myers. Either is a possibility to be the "high-ranking official" who objected to the repeated discussions of what techniques to use. Certainly, Myers is on the record as having opposed the decision not to extend Geneva Convention protections to Al Qaeda (most recently in reports from Feith’s book). And he would count as "high-ranking" in more than one sense (though neither he, nor Card, is still an official, after all).

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Torture Telltale Timing

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Kudos to McClatchy to choose this week to interview Glenn Fine–and to induce him to get unusually chatty. Marisa Taylor reports that DOD is stalling the release of a DOJ IG report on the FBI’s role in torture.

 The release of a report on the FBI’s role in the interrogations of prisoners in Afghanistan, Guantanamo Bay and Iraq has been delayed for months because the Pentagon is reviewing how much of it should remain classified, according to the Justice Department’s watchdog.

Glenn Fine, the Justice Department’s inspector general, told McClatchy that his office has pressed the Defense Department to finish its review, but officials there haven’t completed the process "in a timely fashion."

"Why that happened, I don’t know," Fine said in an interview this week.

Tell me, Marisa Taylor, did Fine have a smirk on his face when he said that? I couldn’t imagine why DOD would be stalling the release of this report!

Though Fine suggests there has been some recent movement in the classification review process.

Fine said the Pentagon now appears to be moving on his request.

"My sense is they are working hard on it now, and I believe we’re going to reach a resolution one way or another in the not-too-distant future," he said. [my emphasis]

Tell me, Glenn Fine, did this sudden responsiveness on the part of the DOD start in the last three weeks or so. You know, since the time when William Haynes left DOD in an awfully big hurry? I couldn’t help but notice that Daniel Dell’Orto got around to declassifying the Torture Memo just weeks (if not days) after Haynes left DOD. I wonder if he has been equally busy clearing Fine’s report for publication.

Remember the Torture Tapes?

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Just about everyone is talking about ABC’s confirmation of what we already knew: the torture was approved–in excruciating detail–by the most senior members of the Bush Administration.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Now, the article is actually incredibly vague about which of the high-value detainees the Principals discussed interrogating. For example, it suggests that Abu Zubaydah’s torture was planned by the Principals. But then–where elsewhere it asserts that all of the Principals approved the torture–it backs off that claim specifically with regards to Zubaydah.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand, he was uncooperative.

[snip]

The CIA wanted to use more aggressive — and physical — methods to get information.

The agency briefed high-level officials in the National Security Council’s Principals Committee, led by then-National Security Advisor Rice and including then-Attorney General Ashcroft, which then signed off on the plan, sources said. It is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah.

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Conyers to Yoo: If You’ll Talk to Esquire, Come Talk to Me

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Conyers isn’t quite as reliable as Henry Waxman in calling a hearing approximately 5 work hours after a big scandal. But is reliable in actually calling the hearing (which means Rove should get his invite in about a day and a half):

I write to invite you to appear before the Committee on the Judiciary at our May 6 hearing scheduled to explore issues regarding the nature and scope of Presidential power in time of war and the current Administration’s approach to these questions under U.S. and international law. Among the subjects likely to be explored at the hearing are United States policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces, matters addressed in some detail in opinions that you authored during your service as Deputy Assistant Attorney General in the Office of Legal Counsel. Given your personal knowledge of key historical facts, as well as your academic expertise, your testimony would be invaluable to the Committee on these subjects.

I understand that, in discussions with my staff, you have expressed reluctance to testify voluntarily on such matters. I am hopeful that you have reconsidered that stance, however, given your extensive public comments on these very issues. For example, on April 3, 2008, Esquire magazine published an interview in which you made frank and on-the-record comments regarding the origination, drafting, and scope of OLC interrogation memoranda. Similarly, you provided on-the-record comments on the recently released March 2003 interrogation memorandum to the Washington Post just last week, describing that document as “near boilerplate” and asserting that, in pulling back from the analysis in that memorandum, the Department had “ignored [its] long tradition in defending the President’s authority in wartime.” Overall, you have made such extensive public comments on these and related matters, that it is extremely difficult to understand why you would continue to decline to present your views to the Committee.

To the extent you have raised concerns with my staff that some questions on these matters might call for responses that you believe would be covered by executive privilege or that would implicate executive confidentiality interests, I am confident such concerns can be effectively managed in a setting where you are voluntarily appearing before the Committee. Read more →

Cheney’s Lawyer Now Defending Haynes

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We’ve discussed the quiet omnipresence of Terry O’Donnell on this blog several times before. O’Donnell is, of course, Dick Cheney’s long-time personal lawyer. We know that David Addington informed Cheney when he discovered the "meatgrinder" note in the evidence being turned over to the FBI in the CIA Leak Case. We also know that O’Donnell took the lead on efforts to convince DOJ not to indict James Tobin–even though O’Donnell was not one of the named Williams & Connolly lawyers representing Tobin.

If the Tobin example didn’t already make it clear that O’Donnell’s job is not just to keep Cheney–but to keep the entire top Bush Administration out of jail–consider this news.

Terry O’Donnell is now representing the former General Counsel for DOD, William Haynes.

The panel notified the Pentagon in early February that it wanted to question Haynes. Before receiving any response, investigators learned on Feb. 25 that Haynes was leaving for Chevron in San Francisco. "How often does somebody like that give two weeks’ notice and leave town?" said one government source familiar with the sequence of events.

Haynes’s departure initially raised concerns about obtaining his testimony without a subpoena, especially after the panel learned that he had retained top criminal defense attorney Terrence O’Donnell, who represented Cheney during the Valerie Plame leak investigation. But O’Donnell told NEWSWEEK that Haynes has agreed to be interviewed, adding that the committee’s probe "had nothing to do" with his resignation.

This mind-boggling news appears in an Isikoff story about a secret Senate Armed Forces investigation into abuses of detainees in DOD custody (recall that Carl Levin Chairs Armed Forces and John McCain is the ranking member–which itself is cause for discussion).

Not surprisingly, Isikoff doesn’t bat an eye about the fact that the Vice President’s personal lawyer is now representing the guy at DOD who is at the nexus of policies permitting torture, the guy who stands between the policies at Abu Ghraib and Gitmo, and Rummy and Dick. Isikoff doesn’t consider the tremendous conflict that O’Donnell is likely to have, representing both the legal facilitator of the torture and the mastermind of the whole damned Unitary Executive itself.

Once again, this Administration appears to be defending itself as a collectivity. Read more →

Torquemadas in Single Needle Suits

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Since I lauded Colonel Pat Lang the other day, and since I fear he interpreted my comment that "Lang’s acerbic commentary lacks all of [Dana] Priest’s balance and moderation" as a critique, I feel duty-bound to link to his post today, riffing on the WaPo timeline describing the Administration’s evolving stance toward torture and the Constitution.

I thought that I had known some tough, ruthless "customers" over the decades, but now I see that they were mostly "wusses."  All those Special Forces soldiers and intelligence people, they just did not "measure up" as tough guys compared to Washington lawyers like the ones cited in this article.

Modern day "Torquemadas" in single needle suits and hand made English shoes.

One must wonder if was mere ambition or a convicion of the rectitude of illegal search and seizure inflicted on American citizens that apealed to these lawyers more in writing these papers.

I suspect that it was ambition.

To make all this even more bitter, the plan clearly was to use American soldiers to do much of this.  (Irony Alert) How grand an idea! In this in way American soldiers could be trained to think that such behavior is appropriate.

Nope. "Lacking all of Dana Priest’s balance and moderation" was definitely not intended as a critique. 

Warrantless Wiretap Memos Timeline

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I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.

Materials not included in Bradbury’s memos are not bold.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.

October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.

November 2, 2001, from DAAG OLC to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.

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Was the October 23, 2001 OLC Opinion the Basis for the Illegal Wiretap Program?

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By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.

[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.

The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.

Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.

The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,

OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.

I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).

The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.

Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).

The NSA is part of the military .

The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”

But the proposition for which that memo is cited* in footnote 10 of the memo is:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

So, what does this mean? Depends on how you define “domestic military operations”, don’t it?

I argue the 10/23/01 memo was the lawyerly justification for:

(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).

All of those things are military operations. 

The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

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Snowball

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I have a feeling (and I hope) things are going to snowball from here on out. With each new revelation, the things the Administration did while operating in secrecy get worse and worse. And, they make it easier for Democrats to push for still more revelations. For example, when the ACLU succeeds in liberating the Yoo Torture Memo, it makes everyone ask about that October 23, 2001 memo that claims the 4th Amendment is dead.

Second, in the March, 2003 Office of Legal Counsel (OLC) memorandum publicly released on April 1, 2008, the contents of a secret October, 2001 OLC memorandum were partially disclosed. Specifically, the 2003 memorandum explains that in an October 23, 2001 memorandum, OLC “concluded that the Fourth Amendment had no application to domestic military operations.”3 On two prior occasions – in letters of February 12 and February 20, 2008, – Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum .4 The memorandum has not been received despite these specific requests.

Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States. The people of the United States are entitled to know the Justice Department’s interpretation of the President’s constitutional powers to wage war in the United States. There can be no actual basis in national security for keeping secret the remainder of a legal memorandum that addresses this issue of Constitutional interpretation. The notion that the President can claim to operate under “secret” powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy. We ask that you promptly release the October 23, 2001, memorandum.

And, when the Attorney General makes bogus assertions to justify his calls for FISA reform, it makes everyone want to know why George Bush didn’t prevent 9/11 if he had the opportunity to.

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