1 Boring Old Man

Yes, We Did Plan for Mumbai-Style Attacks in the U.S.
Why the latest assault on Bush antiterror strategy could make us less safe.
Wall Street Journal
By JOHN YOO

Suppose al Qaeda branched out from crashing airliners into American cities. Using small arms, explosives, or biological, chemical or nuclear weapons they could seize control of apartment buildings, stadiums, ships, trains or buses. As in the November 2008 Mumbai attacks, texting and mobile email would make it easy to coordinate simultaneous assaults in a single city.

In the weeks after the Sept. 11, 2001, strikes on New York City and Washington, D.C., these were hypotheticals no more. They became real scenarios for which responsible civilian and military leaders had to plan. The possibility of such attacks raised difficult, fundamental questions of constitutional law, because they might require domestic military operations against an enemy for the first time since the Civil War. Could our armed forces monitor traffic in a city where terrorists were preparing to strike, search for cells using surveillance technology, or use force against a hijacked vessel or building?

In these extraordinary circumstances, while our military put al Qaeda on the run, it was the duty of the government to plan for worst-case scenarios – even if, thankfully, those circumstances never materialized. This was not reckless. It was prudent and responsible. While government officials worked tirelessly to prevent the next attack, lawyers, of which I was one, provided advice on unprecedented questions under the most severe time pressures.

Judging from the media coverage of Justice Department memos from those days — released this week by the Obama administration — this careful contingency planning amounted to a secret plot to overthrow the Constitution and strip Americans of their rights. As the New York Times has it, Bush lawyers "rush into sweeping away this country’s most cherished rights." "Irresponsible," harrumphed former Clinton administration Justice Department officials.

According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001, which concluded that the September 11 attacks triggered the government’s war powers and allowed the president to use force to counter force…

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…

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable – combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts…

In releasing these memos, the Obama administration may be attempting to appease its antiwar base – which won’t bother to read the memos in full – or trying to look good for the chattering classes. But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

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.

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.

And where does John Yoo get off saying, "In releasing these memos, the Obama administration may be attempting to appease its antiwar base – which won’t bother to read the memos in full – or trying to look good for the chattering classes."? John Yoo is apparently a full service opinion generator. He interprets the Constitution, directs policy, and pontificates on Presidential motives. Perhaps the DoJ isn’t run by Obama like it was run by Bu$hCo when he was there – and Obama himself had nothing to do with releasing those Memos. Maybe Eric Holder released the Memos because the American government is only secret for reasons of national security, and not to protect John Yoo’s ass.