Allison Kilkenny: Unreported

Bush Administration Memos Claimed Vast War Powers

Posted in Barack Obama, law, police state, politics by allisonkilkenny on March 3, 2009

International Herald Tribune

confidential-photo4The secret legal opinions issued by Bush administration lawyers after the Sept. 11, 2001, attacks included assertions that the president could use the nation’s military within the United States to combat people deemed as terrorists and to conduct raids without obtaining a search warrant.

That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency. The opinions showed a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, deal with detainees suspected of terrorism while rejecting input from Congress and conduct a warrantless eavesdropping program.

Some of the legal positions had previously become known from statements made by Bush administration officials in response to court challenges and congressional inquiries. But the opinions provided the clearest illustration to date of the broad definition of presidential power that was approved by government lawyers, including John Yoo and Jay Bybee, in the months following the Sept. 11 attacks.

In a memorandum dated Jan. 15, 2009, just before President George W. Bush left office, a top Justice Department official wrote that the earlier memorandums had not been relied on since 2003. But the official, Stephen Bradbury, who headed the Office of Legal Counsel, said it was important to acknowledge in writing “the doubtful nature of these propositions,” and he used the memo to formally repudiate the opinions.

Bradbury said that the earlier memorandums were the product of lawyers confronting “novel and complex questions in a time of great danger and under extraordinary time pressure.”

The opinion authorizing the military to operate on domestic territory was dated Oct. 23, 2001, and written by Yoo, at the time a deputy assistant attorney general, and Robert Delahunty, a special counsel. It was directed to Alberto Gonzales, then the White House counsel, who had asked whether Bush could use the military to combat terrorist activities inside the United States.

The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Yoo and Delahunty wrote to Gonzales. Any objections based on the prohibition against unreasonable searches in the Fourth Amendment to the Constitution would vanish, he said, because any privacy offense that comes with such a search would be less than any injury from deadly force.

Yoo and Delahunty also said in the Oct. 23 memorandum that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” They added that the “current campaign against terrorism may require even broader exercises of federal power domestically.”

Yoo said the Posse Comitatus Act, a statute first enacted in 1878 and since renewed, would also not present an obstacle to the use of the armed forces. The Posse Comitatus Act generally forbids the use of military forces in domestic law enforcement.

Yoo and Delahunty asserted that the act’s prohibition against use of the military was only for law enforcement functions and that using soldiers against terrorist suspects would be a national security function.

Yoo, a law professor at the University of California, Berkeley, is widely known as the principal author of a 2002 memorandum that critics said authorized torture. The memorandum, signed by Bybee, was repudiated in 2004.

The memorandum issued by Bradbury in January appears to have been the Bush lawyers’ last effort to reconcile their views with the wide-scale rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.

Walter Dellinger, a former head of the Office of Legal Counsel during the Clinton administration who was also a law professor at Duke University, said that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” He said it was important that it was now widely recognized that the earlier assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice and judicial precedent.”

Attorney General Eric Holder Jr. said Monday morning before the release of the documents: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.”

Holder said that the memorandums were being released in light of the legitimate and substantial public interest.

One of the opinions, issued in March 2002, suggests that Congress lacks any power to limit a president’s authority to transfer detainees to other countries. Other memorandums say that Congress has no authority to intervene in the president’s determination of the treatment of detainees, a proposition that has since been invalidated by the Supreme Court.

Bradbury’s memo repudiating these views said that it was “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants.”

10 Bush Pardons to Watch For

Posted in politics by allisonkilkenny on January 19, 2009

Politico

AP

Photo: AP

As the clock ticks down on his presidency, George W. Bush has shown few signs he plans to indulge in the frenzy of last-minute pardons that marked Bill Clinton’s final hours in the Oval Office.

But Bush could quickly leap back into the spotlight in the next two days if he issues a blanket pardon immunizing CIA and military interrogators, as well as their bosses, from criminal prosecution over harsh treatment of prisoners from the war on terror.

“I’m sure he’s under pressure from some people to issue blanket pardons,” Rep. Jerrold Nadler (D-NY) told Politico. “I don’t think it’s fevered imagination. I think it’s reasonable speculation.”

Bush is also facing pressure from conservative allies, who see pardons of former Bush administration officials and some others as a more realistic possibility. At the top of their lists: Dick Cheney’s former chief of staff, I. Lewis “Scooter” Libby and former Attorney General Alberto Gonzales, still under investigation for his role in a series of U.S. attorney firings.

Here is a list of 10 cases that could come under review by Bush, and Politico’s look at the odds Bush will wield his pardon pen:

1. Pardon Prospects: Military and CIA interrogators of war-on-terror prisoners

Status: Could face investigation and prosecution for use of harsh tactics in post-9/11 interrogations. Bush has signaled sympathy with those called upon to “connect the dots” after the terror attack, and the incoming Barack Obama administration has given mixed signals, with Obama himself downplaying prosecutions but his choice for attorney general Eric Holder seeming open to the idea – which could lead Bush to act. 

Pros: Some lawyers doubt charges could ever be brought or convictions obtained because of Justice Department opinions permitting aggressive tactics; might be seen as buck-stops-here gesture by Bush.

Cons: Likely to require a “blanket” pardon which describes conduct, but does not name individuals; might be hard to craft language or justify pardon which immunizes some harsh tactics without overturning convictions for prisoner abuse at Abu Ghraib; certain to trigger outrage among liberals and inflame anti-American feeling abroad. Pardons expert P.S. Ruckman Jr. of Rock Valley College in Illinois downplays “the idea of this big, last-minute, surprise, blanket, turbo-amnesty for war crimes.”

Politico Odds: 4 to 1

2. Pardon Prospect: Former Chief of Staff to Vice President Cheney, I. Lewis “Scooter” Libby Jr.

Status: Convicted in 2007 of obstruction of justice, false statements, and perjury in investigation into leak of identity of CIA officer Valerie Plame. Sentenced to two-and-a-half years in prison, two years probation and $250,000 fine; prison sentence commuted by Bush before service. A Libby pardon has strong support among conservatives. “Scooter Libby was not guilty of the original crime trumpeted by the media and the Democrats for campaign purposes. He was not responsible for the leak…..It’s a travesty, it seems to me,” said Dick Carlson, a former Voice of America chief and ambassador.

Pros: Vice President Dick Cheney views Libby as loyal; disbarment and lack of employment could be seen as punishment; on leaving office, presidents Clinton and Bush (41) also pardoned senior officials 

Cons: Could remind public of Bush’s failure to dismiss those accused of leaking Plame’s identity; risk of public outcry for leaving full pardon for final days of presidency when it could have been done sooner.
Politico Odds: 1 to 2

3. Pardon Prospect: Former Attorney General Alberto Gonzales

Status: A special prosecutor based in Connecticut, Nora Dannehy, has been assigned to review whether Gonzales misled Congress or otherwise interfered with inquiries into the firings of U.S. attorneys. He’s also being investigated for allegedly preparing false after the fact notes of 2004 congressional briefing about warrantless surveillance. Gonzales has denied wrongdoing, but lacks a solid job and could still run up big legal bills trying to ward off a prosecution.

 

Pros: Gonzales a longtime loyal Bush aide; arguably punished by lack of significant employment since resigning under pressure in 2007 

Cons: Pardon could be seen as self-serving since it was Bush who reportedly asked Gonzales to memorialize 2004 Congressional meeting; will prompt charges of cronyism.

Politico Odds: 1 to 1.

4. Pardon Prospects: Former American Israel Public Affairs Committee Lobbyists Steven Rosen and Keith Weissman, Former Pentagon Analyst Lawrence Franklin

Status: Franklin pled guilty in 2005 to passing national secrets to Rosen and Weissman; also admitted to passing secrets to Israeli officials; Rosen and Weissman pled not guilty to conspiring to obtain and distribute classified information; trial set for April 2009

Pros: Could please Jewish activists and pro-Israel conservatives; would end unusual prosecution for activities supporters argue are commonplace in Washington

Cons: Undercuts Bush administration’s anti-leak campaign; not clear that Rosen or Weissman desire pardon; Franklin’s admission of direct disclosures to Israel undermines chance for him

Politico Odds: Rosen/Weissman, 10 to 1; Franklin: 20 to 1

 

5. Pardon Prospect: Former Justice Department official Bradley Schlozman

Status: Investigated for alleged use of political considerations in hiring at DOJ Civil Rights Division and for alleged false statements to Congress; defense lawyer says U.S. Attorney declined to prosecute and “exonerated” Schlozman; Holder told senators he plans to “review” that decision as attorney general

Pros: Eliminates further legal exposure for aide already reportedly cleared once by Justice Department

Cons: Could be viewed as endorsement of politicization at DOJ

Politico Odds: 4 to 1

6. Pardon prospect: Former junk bond king Michael Milken

Status: Pled guilty in 1990 to six tax and securities-related felonies; sentenced to 10 years; ultimately served 22 months

Pros: Out of prison for 16 years; extensive philanthropy since leaving prison

Cons: Tough time to pardon anyone with Wall Street ties

Politico Odds: 2 to 1

7. Commutation Prospects: Former Border Patrol agents Ignacio Ramos and Jose Compean

Status: Convicted in 2006 of shooting fleeing drug smuggling suspect who was illegal alien; Compean sentenced to 12 years in prison; Ramos to 11 years

Pros: Crusade for clemency led by CNN anchor Lou Dobbs; commutation supported by Sens. Dianne Feinstein (D-Calif.) and John Cornyn (R-Tex.), as well as conservative lawmakers

Cons: Dobbs was no friend of Bush’s immigration policy; could be seen as endorsing police abuse

Politico Odds: 3 to 1

8. Commutation Prospect: Former Governor George Ryan (R-Ill.)

Status: Convicted in 2006 of corruption charges; serving six-and-a-half year prison sentence; set for release in 2013

Pros: Ryan is 74; wife in ill health; clemency has support of Sen. Richard Durbin (D-Ill.)

Cons: Timing less than ideal since Ryan’s successor, Rod Blagojevich (D), now faces corruption charges; Ryan has served little of his sentence, only about a year

Politico Odds: 4 to 1

9. Commutation Prospect: Israeli spy Jonathan Pollard

Status: Pled guilty to espionage in 1986; sentenced to life in prison without parole

Pros: Backers say Pollard’s punishment more severe than spies from countries hostile to America; commutation would please Israel and Jewish groups

Cons: Strongly opposed by defense and intelligence communities; Bush has rejected numerous pleas from Israeli officials

Politico Odds: 20 to 1

10. Commutation Prospect: Randall “Duke” Cunningham (R-Calif.)

Status: Pled guilty in 2005 to conspiracy and tax evasion as part of $2.4 million bribery scheme; sentenced to eight years four months

Pros: Stricken with prostate cancer; age 67

Cons: Bush publicly called Cunningham’s scheme “outrageous”; some Republicans blame Cunningham in part for party’s poor showing in 2006 and 2008; clemency could complicate pending trial for alleged co-conspirator, CIA official Kyle “Dusty” Foggo

Politico Odds: 50 to 1

Torture Prosecutions Finally Begin in U.S.

Posted in torture by allisonkilkenny on December 31, 2008

Glenn Greenwald

guantanamoWhile fiercely loyal establishment spokespeople such as The Washington Post‘s Ruth Marcus continue to insist that prosecutions are only appropriate for common criminals (“someone breaking into your house”) but not our glorious political leaders when they break the law (by, say, systematically torturing people), the Bush administration has righteously decided that torture is such a grotesque and intolerable crime that political leaders who order it simply must be punished in American courts to the fullest extent of the law . . . . if they’re from Liberia:

MIAMI (AP) — U.S. prosecutors want a Miami judge to sentence the son of former Liberian President Charles Taylor to 147 years in prison for torturing people when he was chief of a brutal paramilitary unit during his father’s reign.

Charles McArthur Emmanuel, also known as Charles “Chuckie” Taylor Jr. is scheduled to be sentenced Jan. 9 by U.S. District Judge Cecilia M. Altonaga. His conviction was the first use of a 1994 law allowing prosecution in the U.S. for acts of torture committed overseas.

Even in the U.S., it’s hard to believe that federal prosecutors who work for the Bush DOJ were able to convey the following words with a straight face:

A recent Justice Department court filing describes torture – which the U.S. has been accused of in the war on terror – as a “flagrant and pernicious abuse of power and authority” that warrants severe punishment of Taylor.

It undermines respect for and trust in authority, government and a rule of law,” wrote Assistant U.S. Attorney Caroline Heck Miller in last week’s filing. “The gravity of the offense of torture is beyond dispute.”

The AP article which reported on these proceedings, by Curt Anderson, is almost as illustrative an exhibit of how our country operates as the trial itself is.  Marvel at this passage:

Emmanuel had argued in previous court papers that he was being unfairly prosecuted for acts similar to those committed by U.S. personnel in Iraq and elsewhere.

The administration of President George W. Bush has been criticized by some around the world and in Congress forusing aggressive interrogation techniques. Justice Department memos were seen as providing legal underpinnings for some of the techniques.

However, administration officials have blamed abuses at places such as Iraq’s Abu Ghraib prison on a small number of soldiers or agents and insisted there has been no systematic mistreatment of detainees in Iraq, Afghanistan or the prison camp at Guantanamo Bay, Cuba.

Acts which, when ordered by Liberians, are “criminal torture” meriting life imprisonment magically become, when ordered by Americans, mere “aggressive interrogation techniques.”   And while not all of the “techniques” used by the Liberians were authorized by Bush officials (“hot clothes irons” and “biting ants shoveled onto people’s bodies”), many of the authorized American techniques are classic torture tactics and resulted in thedeaths of many detainees and the total insanity of many more.

Worse, AP — with canine-like subservience — mindlessly recites the Bush administration’s excuses (Abu Ghraib was due to low-level rogue bad apples and “there has been no systematic mistreatment of detainees”) without even mentioning the ample evidence proving how false those government claims are.  That’s standard American “journalism” for you:  “Our Government says X, and even if it’s false and even if it’s intensely disputed, we’ll just leave it at that.”  Doing anything more — as NBC News’ David Gregory pointed out — is “not their role.”

There’s something beautifully illustrative about this torture prosecution.  Apparently, it’s not just appropriate, but necessary and urgent, for American courts to be used to prosecute the leaders of small African nations who order torture exclusively in their own land.  Doing that is necessary to uphold what the Bush DOJ calls “respect for and trust in authority, government and a rule of law.”  

But — say Bush loyalists and our pliant political class in unison — the one thing that we cannot tolerate is for American courts to be used to impose accountability on American leaders who authorized illegal torture.  And, of course, the only thing worse than doing that would be to subject them to prosecution by another country or, creepier still, an international tribunal.  That would be an intolerable infringement of our sovereignty, we say as we prosecute the son of Liberia’s President for acts he undertook exclusively inside Liberia.

In Liberia, the Taylor regime, for many years, was genuinely threatened by numerous rebels and revolutionary factions — ones supported by other countries — seeking to overthrow the Liberian government.  The torture which Taylor, Jr. was accused of ordering occurred during a brutal civil war

Liberia undoubtedly has its own Jack Goldsmiths and Stuart Taylors who insist that the torture which the Taylors ordered — though perhaps “crossing a line or two” — was done for the Good and Safety of the Liberian People and to defend the Government against these foreign and domestic threats.  The Taylors undoubtedly have their loyalists who echo our own Cass Sunsteins and Ruth Marcuses, urging that it would be so much better for the country if everyone just let bygones be bygones and looked to the pretty future and the challenges Liberians face and not get distracted by litigating the unpleasant and partisan fights of the past.

But, like most of the alleged principles to which our political elite professes allegiance, America and its leaders are entitled to a different set of standards and better treatment.  Thus, Charles Taylor belongs at the Hague, being prosecuted as a war criminal.  His son belongs in an American criminal court being prosecuted by the Bush DOJ for torture.  And George Bush and Dick Cheney belong on their “ranches,” enjoying full-scale immunity for the crimes they committed and a rich and comfortable retirement, treated as the esteemed and well-intentioned (even if sometimes misguided) dignitaries that they are.  Virtually the only people in the world who fail to recognize this self-evident, ludicrous and disgusting hypocrisy are America’s political and media elites and those who are misled by them.

 

UPDATE:  Michael Mukasey, who refuses even to say whether waterboarding is torture and has repeatedly acted to protect Bush officials from prosecution, appeared two weeks ago at the U.S. Holocaust Memorial Museum and actually spoke these words (h/t sysprog):

It serves as a daily reminder to the leaders of the free world, and to the many visitors to our nation’s capital, that law without conscience is no guarantee of freedom; that even the seemingly most advanced of nations can be led down the path of evil; and that we must confront horror with action and vigilance, not lethargy and cowardice. . . .

Just as the Museum has focused on present-day mass killings such as those in Rwanda or Darfur, we at the Department are doing what we can to ensure that those responsible for such atrocities are brought to justice. We have provided support to the International Criminal Tribunals for Rwanda and the former Yugoslavia; to the Special Court for Sierra Leone, and to the Iraqi High Tribunal. And where we can, we are bringing our own cases. Both the Office of Special Investigations and the Domestic Security Section – parts of the Department’s Criminal Division – are pursuing cases against perpetrators of those international atrocities who find their way into our country.

The most prominent example of those efforts is the recent conviction of Chuckie Taylor Jr., the son of the former President of Liberia, who was convicted of torturing his countrymen. His conviction – the first in history under our criminal anti-torture statute – provides a measure of justice to those who were victimized by his reprehensible acts, and itsends a powerful message to human rights violators around the world that, when we can, we will hold them accountable for their crimes.

Mukasey actually had the audacity to approvingly quote from Robert Jackson’s addresses to the Nuremberg Trials, at which this central proposition of Western justice — now explicitly renounced by America’s political and media establishment — was ostensibly established:

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .

Unsurprisingly, Mukasey neglected to mention that Jackson, in his opening remarks to the tribunal, called “aggressive war” the “greatest menace of our times,” and in his summation, Jackson observed that “the plot for aggressive wars” is “the central crime in this pattern of crimes, the kingpin which holds them all together.”

The glaring contradictions in Mukasey’s words are too self-evident to warrant explanation.  Ponder, instead, the opinion which Mukasey — by uttering such brazen statements in public and knowing he can do with impunity — is implicitly expressing about how broken is our establishment media and how distorted is our political discourse.

UPDATE II:  Alberto Gonzales gave a painfully self-pitying interview toThe Wall St. Journal this week and announced that the real victims aren’t the detainees who were tortured in our secret and not-so-secret prison camps, nor the millions of dead or displaced Iraqis, nor the Americans whose communications were illegally spied upon without warrants.  No, the Real Victims of the last eight years are Bush officials like him who face criticism for what they did:

I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror.

Here we find the predominant — virtually unanimous — Beltway mentality:  when high American officials break our laws, it’s nothing more than “formulating policies that people disagree with.”  Gonzales cried out:  “What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?”  The answers are obvious to anyone paying even minimal attention.  Steve Benen points out just some of them here.