I know that many of you are just tired of the relentless focus of some on those early John Yoo OLC opinions that purported to give President Bush authority to do all manner of evil havoc after 9/11. For some, it’s become something like chasing down Nazi War Criminals after World War II. And I’m one of those people who thinks it’s vitally important – even though it’s monotonous [for the same reason that the Israelis continue to look for the Nazis even today – the reason is Never Again!].
Recently, the DoJ has released some more of those OLC Memos from 2001-2003 and included a few new ones written in their 11th hour. For review, here are a few excerpts from the recently released old Yoo/Bybee Memos:
They’re all the same. The President has the power to do whatever-in-the-hell he wants to do. What’s interesting in that the DoJ in the waning days issued some CYA Memos. Here are a few words from the new ones:
As emptywheel points out, the Bush DoJ got busy after Mukasey’s grilling in Congressional Hearings and put out these new forget-those-old-memos memos.
In her post on Steven Bradbury’s October 6, 2008 OLC opinion withdrawing the October 23, 2001 OLC memo eviscerating the 4th Amendment, Christy asks some important questions.In fact, it reads like a thinly veiled, but ever-so-politely worded, call of "bullshit." It’s laugh out loud funny. Or would be if it weren’t for the fact that it took more than 7 years to issue it – during which time the government was still operating under the craptastic legal assumptions, one presumes. Why was this kept hidden?
I’ve got a pretty good answer why Bradbury’s opinion was kept hidden. In the exchange between DiFI and Michael Mukasey above–which took place on April 10, 2008–Mukasey equivocated, badly, about whether or not that October 23, 2001 opinion remained in force.
DiFi: Is this memo in force? That the Fourth Amendment does not apply in domestic military.Mukasey: The principle that the Fourth Amendment does not apply in wartime is not in force.DiFi: No. The principle that I asked you about? Does it apply to domestic military operations? Is the Fourth Amendment, today, applicable to domestic military operations?Mukasey: [unclear] don’t know of domestic military operations being carried out today.DiFi: I’m asking you a question. That’s not the answer. The question is, does it apply?Mukasey: I’m unaware of any domestic military operations being carried out today.…Mukasey: The Fourth Amendment applies across the board regardless of whether we’re in wartime or in peacetime.…Mukasey: In my understanding it is not operative.Well, it turns out it took another six months for Bradbury to withdraw the opinion. Given Mukasey’s equivocations, I’d say there’s a very good reason they hid the memo [and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly]. I’d also suggest that, Mukasey knew well of a domestic military operation – DOD’s NSA wiretapping Americans domestically – that was ongoing at the time. And which, until the passage of the FISA Amendment Act, may well have been relying on Yoo’s October 2001 memo for legal cover.
Why are some of us so focused on these long-ago-and-far-away thoroughly-debunked memos? There are specific reasons. First, these memos established actionable policy and yet they were kept secret for years, some as long as 8 years. That kind of secrecy should never happen again. President Bush, Vice President Cheney, and Cheney’s Legal Counsel/Chief of Staff David Addington appointed people to the OLC in the DoJ that rubber-stamped whatever they wanted – macerating the Constitution. Second, these OLC opinions are on file and could be used as precedents for some future lunatic administration. Finally, this whole process stinks to high heaven and needs to be engraved somewhere in granite as something to never ever be possible do again [assuming America survives the current economic tsunami]. Invalidating the Constitution, particularly in secret, is simply not an option…
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