Bush Administration Memos Claimed Vast War Powers
The 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.”
Guns For Votes
The 600,000 residents of Washington, D.C., have long been without Congressional representation. They were only allowed to vote for President for the first time in 1964 because of the 23rd Amendment that gave the district 3 electoral votes. But the District still lacks representation in Congress.
Today, the Senate voted 67-31 for a bill that would give the District a single seat in the Congress and would create an additional seat that would go to a state based on population. As it stands, that state would be Utah. Utah typically votes Republican and the District typically votes Democratic. But there are strings attached to the bill.
The bill includes an amendment that would repeal local District gun control laws. Nevada Senator John Ensign (R) sponsored the amendment that would repeal gun control laws in the District. The District currently bans semiautomatic guns. The bill would also restrict the District’s ability to make laws concerning gun control in the future.
Senator Ensign said his goal with the amendment was to “remove the tremendous barriers and burdens on law-abiding citizens” but Senator Dianne Feinstein (D) of California called the amendment “reckless” and “irresponsible.”
It appears that if the citizens of D.C. want representation in Congress, they will have to trade their current laws on gun control to get it. Despite opposition from the residents of D.C. to the stripping of their gun laws, the House is expected to pass the bill next week and President Obama has promised to sign it.
There are more obstacles ahead for the bill. Opponents like Mitch McConnell (R) of Kentucky, insist that the Constitution on Congressional representation is clear: “only states elect members of Congress.” The District of Columbia is not considered a “state.”
The bill will probably wind up in the Supreme Court to test its Constitutionality.
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Among other things, the amendment’s wacky provisions would make it much harder for police to trace crime guns by repealing all registration requirements. The amendment also would bar Washington from enacting laws or regulations that may discourage private gun ownership or use, including by children or felons. It would lift a ban on gun possession by anyone voluntarily committed to a mental institution in the last five years and end a ban on .50 caliber sniper rifles and military-style semiautomatic assault weapons. All of this under the phony guise of complying with last year’s Supreme Court ruling.
US Supreme Court Says Passenger Can Be Frisked
WASHINGTON (AP) – The Supreme Court ruled Monday that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.The court unanimously overruled an Arizona appeals court that threw out evidence found during such an encounter.
The case involved a 2002 pat-down search of an Eloy, Ariz., man by an Oro Valley police officer, who found a gun and marijuana.
The justices accepted Arizona’s argument that traffic stops are inherently dangerous for police and that pat-downs are permissible when an officer has a reasonable suspicion that the passenger may be armed and dangerous.
The pat-down is allowed if the police “harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public,” Justice Ruth Bader Ginsburg said.
Uphold the Voting Rights Act
Some people claim that Barack Obama’s election has ushered in a “postracial” America, but the truth is that race, and racial discrimination, are still very much with us. The Supreme Court should keep this reality in mind when it considers a challenge to an important part of the Voting Rights Act that it recently agreed to hear. The act is constitutional — and clearly still needed.
Section 5, often called the heart of the Voting Rights Act, requires some states and smaller jurisdictions to “preclear” new voting rules with the Justice Department or a federal court. When they do, they have to show that the proposed change does not have the purpose or effect of discriminating against minority voters.
When Congress enacted Section 5 in 1965, officials in the South were creating all kinds of rules to stop blacks from voting or being elected to office. Discrimination against minority voters may not be as blatant as it was then, but it still exists. District lines are drawn to prevent minorities from winning; polling places are located in places hard for minority voters to get to; voter ID requirements are imposed with the purpose of suppressing the minority vote.
After holding lengthy hearings to document why the Voting Rights Act was still needed, Congress reauthorized it in 2006 with votes of 98 to 0 in the Senate and 390 to 33 in the House. Now, a municipal utility district in Texas that is covered by Section 5 is arguing that it is unconstitutional, and that it imposes too many burdens on jurisdictions covered by it.
If the Supreme Court — which is expected to hear arguments in the case this spring — strikes down Section 5, it would be breaking radically with its own precedents. The court has repeatedly upheld the Voting Rights Act against challenges, and as recently as 2006 it ruled that complying with Section 5 is a compelling state interest. It would also be an extreme case of conservative judicial activism, since the 14th and 15th Amendments expressly authorize Congress to enact laws of this sort to prevent discrimination in voting.
A perennial criticism of Section 5 is that it covers jurisdictions it should not, or fails to cover ones it should. There is no way to construct a perfect list, but Congress has done a reasonable job of drawing up the criteria, and it has built flexibility into the act. Jurisdictions are allowed to “bail out” if they can show that they no longer need to be covered, and courts can add new jurisdictions if they need to be covered.
In last fall’s election, despite his strong national margin of victory — and hefty campaign chest — Mr. Obama got only about one in five white votes in the Southern states wholly or partly covered by Section 5. And there is every reason to believe that minority voters will continue to face obstacles at the polls.
If Section 5 is struck down, states and localities would have far more freedom to erect barriers for minority voters — and there is little doubt that some would do just that. We have not arrived at the day when special protections like the Voting Rights Act are not needed.
Dennis Blair Refuses to Say Waterboarding is Torture
Note from Allison: Add this to Blair’s connection with the East Timor massacre and the question becomes glaringly obvious: is this really the best person we can find for the Director of National Intelligence? Blair disobeyed his orders from Washington and informed top Indonesian general Wiranto that he had unwavering U.S. support. The ruthless attacks in East Timor resulted in hundreds dead and thousands displaced.
At the very least, Blair is an accessory to war crimes if his complacency in this massacre doesn’t directly link him to war crimes. Now, he refuses to call waterboarding torture, which is a pretty huge prerequisite for someone who will serve as the head of the intelligence community.
During his confirmation hearings, Attorney General Eric Holder clearly expressed that “waterboading is torture.” But President Obama’s nominee to be Director of National Intelligence, ret. Adm. Dennis Blair, refused to call waterboarding torture in his confirmation hearing today. “There will be no waterboarding on my watch. There will be no torture on my watch,” Blair said, “refusing to go further,” according to Reuters. Sen Carl Levin (D-MI) told Blair, “If the attorney general designee can answer it, you can too.”
Media Desperately Tries to Assure Us That Obama Loves Torture
In his post today, Glenzilla thoroughly parses the new Washington Post poll which indicates that solid majorities of the American people believe that torture should not be used in any circumstances, that terrorist suspects should be tried in regular courts and that there should be official investigations into the Bush era torture regime. It would seem that the beltway elite’s characterization of people who hold such opinion as being “liberal score settlers” would both indicate that a majority of the country is liberal and that they actually believe that torture is wrong. Imagine that.
This brings up an interesting dilemma for our old pal Christopher Hitchens who held a fabulous village gala the other night at his place andsaid:
“I know something for a sure thing,” Hitchens continued. “The demand for torture and other methods I would describe as illegal, the demand to go outside the Geneva conventions — all this came from below. What everyone wants to say is this came from a small clique around the vice-president. It’s not educational. It doesn’t enlighten anyone to behave as if that were true. This is our society wanting and demanding harsh measures.” Therefore, he went on, the demand for prosecution or other measures against Bush administration officials would likewise have to come from below, via the grassroots. “Otherwise it’s just vengeful, I suppose, and partisan.”
But, as I wrote earlier, when Hitchens talks about coming from below he really means the media elite who “represent” Real Americans. They don’t listen to the polls, they listen to their guts, which are a far more reliable gauge of what the grassroots really believe than polls or elections.
Meanwhile, here’s Town Crier Chuck Todd reassuring us all that these new executive orders won’t allow the terrorists to kill us all in our beds:
Todd: There are still some loopholes. Those who are worried that somehow there isn’t going to be a way to get intelligence out of them… for instance, while there is a mandate, one of these executive orders says that the Army Field Manual is what needs to be used to decide how to interrogate these folks, there is also going to be an allowance by this new commission to come up with a protocol to deal with intelligence, you know detainees that are detained from the intelligence battlefield, not necessarily the actual combatant, you know, one that would be soldier to soldier.
Now the administration says this does not mean they will invite new methods of interrogation back into the fold, but like I said Andrea, you could go through here with a fine tooth comb and could find plenty of loopholes that would allow certain things to happen.
Now, it’s hard to make sense out of that, and I don’t know specifically what loopholes he’s talking about, but it’s clear that Chuck Todd is seeking to reassure everyone that some kind of torture will be allowed if it’s really necessary. (Boy that’s a relief, huh?)
In fact, the whole tenor of the coverage of today’s executive orders seems to be about how Obama has done this because Guantanamo and torture “look bad” but that he’s got to find some legal means to circumvent constitutional principles because well … he just does:
Pete Williams: The most controversial aspect of this is that there will still be a category of detainees that can’t be released but can’t be put on trial because there isn’t enough evidence or because the evidence was obtained in some way that couldn’t be used in court and they seem to say in this document, “we’re still probably going to have to hold those people if they’re dangerous, we just don’t know how,” so one of the things this document says is to the government, look at our legal options, there must be some legal way to do this.
And, of course, human rights groups have been saying “you can’t have it both ways” you can’t both detain them and not put them on trial.
Where do those human rights groups get those crazy ideas?
I honestly don’t know why we shouldn’t apply this logic across the board. If the authorities “know” that someone is guilty of murder but they don’t have any evidence or coerced an unreliable confession out of them under torture, why isn’t there some legal way to hold this alleged murderer anyway? Indeed, it would save a lot of time and money if we could just dispense with the whole trial process at all — if the government just “knows” when someone is dangerous and that they’ve committed crimes then what’s the point of all this “proof” business in the first place?
I have no idea what Obama really has in mind with these orders — although they are certainly a welcome step in the right direction this commission he’s forming to assess interrogation techniques seems superfluous to me. The Geneva Conventions aren’t obscure on these points and neither is the scholarship on effective interrogation techniques. I assume that he’s simply trying to appease the intelligence community by not being unequivocal in the first few days.
But regardless of his intentions, it’s clear that the media has decided that he’s trying to have it both ways. I’m sure that’s very reassuring to them — they all love torture and indefinite detention (except for themselves and their friends, who “suffer enough” if they are simply publicly embarrassed.) But if Obama’s intention is to send a clear signal that America is not going to torture and imprison people in violation of the law and the constitution, the media that’s supposed to convey that view isn’t getting the message.
Let’s hope they are just being myopic and stupid as usual. If they aren’t, or this “confusion” is allowed to stand, then it’s likely that the foreign policy benefit of changing the policies are going to be compromised. I hear that the foreigners have the internet these days.
Here’s the Center For Constitutional Rights’ statement on today’s orders.
Real Short: 7 Problems with Real ID
The Real ID Act creates a federal identity document that every American will need in order to fly on commercial airlines, enter government buildings, open a bank account, and more.
It creates huge administrative burdens for state governments, while providing no federal funds for implementing its onerous requirements. At the same time, it does nothing to combat terrorism, and puts us at greater risk for invasions of privacy and identity theft.
On this page you can learn more about Real ID: the costs, the burdens, and the real bureaucratic nightmare coming to a DMV near you.
What’s Wrong With Real ID
- It’s a national identity system. The standardized national driver’s licenses created by Real ID would become a key part of a system of identity papers, databases, status and identity checks and access control points – an “internal passport” that will increasingly be used to track and control individuals’ movements and activities.
- Will not be effective against terrorism. The fact is, identity-based security is not an effective way to stop terrorism. ID documents do not reveal anything about evil intent – and even if they did, determined terrorists will always be able to obtain fraudulent documents (either counterfeit or real documents bought from corrupt officials).
- Will be a nightmare for state governments. Real ID requires state governments to remake their driver’s licenses, restructure many of their computer databases and other systems, create an extensive new document-storage system, and – perhaps most difficult of all – verify the “issuance, validity and completeness” of every document presented at DMVs. See Real Burdens.
- Will mean higher fees, long lines, and bureaucratic nightmares for individuals. Because Congress ordered but did not pay for these mandates, which will cost states billions of dollars, fees on individuals applying for driver’s licenses will inevitably rise, perhaps steeply. Individuals are also likely to confront slower service, longer lines, and frequent bureaucratic snafus in obtaining these ID cards. Many unlucky individuals will find themselves caught in a bureaucratic nightmare as they run up against the complexities of this law.
- Increased security and ID-theft risks. The creation of a single interlinked database as well as the requirement that each DMV store copies of every birth certificate and other documents presented to it will create a one-stop shop for identity thieves.
- Will be exploited by the private sector to invade privacy. Real ID would make it easy for anybody in private industry to snap up the data on these IDs. Already, bars often swipe licenses to collect personal data on customers – but that will prove to be just the tip of the iceberg as every convenience store learns to grab that data and sell it to data companies for a dime.
- Will expand over time. The Real ID database will inevitably, over time, become the repository for more and more data on individuals, and will be drawn on for an ever-wider set of purposes. Its standardized machine-readable interface will drive its integration into an ever-growing network of identity checks and access control points – each of which will create new data trails that will in turn be linked to that central database or its private-sector shadow equivalent.
For more information on these problems, see the Real Answers FAQ.
Drunken Politics: Gay is the New Black
Allison and Jamie talk about race, gay rights, Ann Coulter’s jaw and how apparently “Gay is the new Black”.
Enjoy it, it’s Drunken Politics on BreakThru Radio. Check back at Breakthru Radio every Wednesday to hear new episodes of Drunken Politics.
Drunken Politics: myspace.com/drunkenpoliticsradio.
Velvet Revolution Calls on CA Secretary of State to Investigate Prop 8 Vote
And so it is with Proposition 8, the California initiative revoking marriage equality that was announced to have passed in the November 4 election. We support the lawsuits challenging Prop 8 on legal grounds. We simultaneously call for Secretary of State Debra Bowen to initiate an investigation into the results of the Proposition 8 election, based on concerns raised by voters, election monitors and election integrity advocates.
In order for Bowen to investigate problems that may have affected the outcome of Proposition 8 or other election results, her office must receive Election Complaint Forms from California registered voters as soon as possible. Final election returns are to be submitted by December 9th and the results will be certified on December 13th. Similar complaints may be combined in a joint investigation. The more personally-witnessed and well-documented complaints we can get to her, the better.
We ask that anyone who has bona fide information relevant to such an investigation submit it to Debra Bowen’s office by Monday, November 24, 2008 if at all possible, so that an investigation can be launched immediately. Complaints about individuals’ experiences while voting or monitoring the election are encouraged. Please use the official complaint form, which is available for download in several languages, and follow the outlined procedure. See below for more information about submitting complaints. If you cannot submit your complaint by Monday, November 24, please submit it as soon after that date as possible.
Please email a copy of the complaint to us as well at info(at)StandingForVoters.org. (StandingForVoters.org is a project of Velvet Revolution.)
Of course, we also encourage people to submit complaints to their local and state elections officials about any election irregularities they can document, regardless of where they occur or which campaign or issue they may favor. We the People demand accountability in our elections systems and a true basis for confidence in the election results.
In addition to the new reward being offered in the Proposition 8 race, Velvet Revolution is also offering rewards related to Mike Connell’s election manipulations, the break-ins at ACORN’s offices in Massachusetts and Washington state, and the 2002 Georgia Senate race in which Saxby Chambliss prevailed. Chambliss is currently fighting to retain that Senate seat in a runoff election to be held December 2. Velvet Revolution’s tipline for election fraud whistleblowers can be reached at 1-888-VOTE-TIP.
HOW TO SUBMIT AN ELECTION COMPLAINT FORM:
- Download the form from: www.sos.ca.gov/elections/elections_fraud.htm
ELECTION FRAUD INVESTIGATION UNIT
1500-11th STREET, 5th Floor
Sacramento, CA 95814
- You can scan the completed form and supporting documents and email them to:
- You can call in a complaint at one of the following:
Spanish: 1-800-232-VOTA (8682)
The SoS legal staff recommends casting the widest net possible in the section “PERSONS OR ORGANIZATIONS AGAINST WHOM THE COMPLAINT IS BROUGHT,” i.e., anyone and everyone who could be liable, responsible or accountable for or otherwise involved in elections results.
EXAMPLE: All companies whose election systems are used in the State of California including but not limited to ES&S, Sequoia, Hart Intercivic, and Premier Election Solutions (aka Diebold); all elections officials and elections personnel of the State of California, including the Secretary of State’s Office, all County Registrars’ Offices and their staffs including temporary poll-workers; National Exit Polls (aka Edison/Mitofsky); CNN.
If you want your complaint to also be reviewed under HAVA regulations such as “HAVA Title III-Subtitle A-Requirements. SEC. 301.VOTING SYSTEM STANDARDS (a) (5) “The error rate of the voting system in counting ballots…” you must also include the second page of the form notarizing your signature.
Blogged by Emily Levy 11/22/08
Huckabee Explains Why Gay Rights Are Not Civil Rights
Mike Huckabee appeared on The View and explained why the gay rights movement is not at all like the civil rights movement, and separate but equal gay rights is not at ALL like separate but equal for civil rights.
Spoiler alert: it makes no sense.
Huckabee reasons that the two are different because gays don’t “get their skulls cracked” in their struggle for equality. Joy, correctly, points out that gay-bashing does occur. Huckabee counters that he means the institutionalized sort of police skull-busting that occurred in the south.I would argue that the only reason that doesn’t happen is because our media would cover it and there would be a public outcry precisely because civil rights advocates went through that forty years ago. Therefore, the institutionalized form of discrimination is still there, but it’s a sneakier, softer kind of discrimination. They don’t blast gays with fire hoses, but they refuse them equal legal rights. It would be difficult to weigh which hurts more: getting blasted with a hose or being denied the privilege of sitting beside your loved one while he or she dies in a hospital bed.
This is a shameful chapter of our country, and people like Mike Huckabee are on the wrong side of history.
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