After 9/11, Republicans insisted that the United States was "at war" with al Qaeda -- a reversal from the Clinton administration, which prosecuted terrorism as crime. And because of this "War on Terror," they claimed the Constitution endowed W. with vastly expanded executive powers, including the authority to spy on Americans, kidnap people, torture them, hold them indefinitely, set up torture gulags all over the world, launch drone attacks, launch pre-emptive wars, and so on.
All of that authority, Republican partisans eagerly ceded to the President, while smearing civil liberties groups like the ACLU as being terror-loving traitors. But now that there's a Democrat in the White House, Bush/Cheney followers are today celebrating Rand Paul's "greatness" for his stand on civil liberties.
I just have one question for them.
If the president doesn't have the authority to launch a drone strike against an American citizen on US soil, why does he have the right to crush a child's testicles?
Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty...
Cassel: Also no law by Congress -- that is what you wrote in the August 2002 memo...
Yoo: I think it depends on why the president thinks he needs to do that.
Wow. You have to be some kind of "Liberal Statist" to think that way, right?
Back in December 2005, John Yoo was asked if any law or treaty could prevent the President of the United States from torturing someone, "including by crushing the testicles of the person's child." Yoo, then head of President Bush's Office of Legal Counsel at the Department of Justice, responded, "I think it depends on why the president thinks he needs to do that." To put it another way, the American people just have to take the President's word for it.
That's what makes the revelations in the Obama DOJ's white paper on lethal strikes targeting American members of Al Qaeda so disappointing--and so disturbing. President Obama or an unspecified "informed, high-level government official" will decide if an American citizen anywhere in the world represents an "imminent" threat to the United States, even if no evidence of a planned attack exists. With no oversight from Congress or review from the equivalent of a FISA court, the President and his team will act as judge, jury and executioner. Trust, but don't verify.
Voices as diverse as the Center for American Progress, former Bush assistant attorney general Jack Goldsmith and a bipartisan group of Senators have called for a new legal regime to govern America's expanding campaign of clandestine drone strikes and special operations. The concern arises not because the targeting of the enemy's operational leaders is a violation of U.S. or international law. (As Attorney General Eric Holder explained in his March 5, 2012 speech which first hinted at the existence of the DOJ guidelines, the killings of Japanese Admiral Yamamoto during World War II and Osama Bin Laden in Pakistan provide ample precedent for the President to exercise his powers as Commander-in-Chief under Article II of the Constitution.) Still, drones are rapidly transforming American national defense itself, with potential surveillance at home and the rising number of deadly strikes abroad altering the very definition of warfare. (It is worth noting that American drone warfare has not only triggered a probe by the United Nations, but more importantly is producing blowback in Pakistan, Yemen and other battlefields in the war against Al Qaeda and its affiliates.) But the targeting of American citizens is new territory altogether. And in the wake of this week's disclosures, Attorney General Holder's pledge to guarantee Americans' due process rights under the Fifth Amendment in March seems woefully insufficient:
The only thing more predictable than Americans' jubilation over the killing of Osama Bin Laden is the Republican campaign to give George W. Bush credit for it. Sadly for the right-wing propaganda machine, as Stephen Colbert warned President Bush five years ago, "reality has a well-known liberal bias." Bush, after all, shrugged off Bin Laden's escape after the U.S. failure at Tora Bora by proclaiming, "I truly am not that concerned about him." And it was President Obama who as promised tripled American resources in Afghanistan and authorized unilateral strikes without the permission of Pakistan.
But you'd never know it from the conservative voices celebrating the death of Bin Laden eight years to the day after President Bush declared "Mission Accomplished" aboard the USS Abraham Lincoln. While GOP leaders like Eric Cantor couldn't bring themselves to credit Barack Obama by name, John Yoo, Karl Rove, Rep. Steve King and other cheerleaders for the Bush torture team dubiously claimed so-called enhanced interrogation techniques like waterboarding provided the vital information leading to Bin Laden's killing.
But it was former Bush Defense Secretary and serial fabulist (see, for example, here and here) Donald Rumsfeld who regurgitated the GOP talking point in its purest form:
"All of this was made possible by the relentless, sustained pressure on al Qaeda that the Bush administration initiated after 9/11 and that the Obama administration has wisely chosen to continue."
Of course, Rumsfeld's revisionist history is untrue. More pathetic still, he knows it is untrue.
For starters, it was Donald Rumsfeld himself who cancelled the 2005 U.S. special forces operation designed to "snatch and grab" Ayman Al Zawahiri and other senior Al Qaeda leaders. The story, following July 2006 revelations that the CIA had previously disbanded its Bin Laden unit, gives lie to one of the central tenets of the so-called Bush Doctrine: no safe havens for terrorists. As the New York Times reported in July 2007, Rumsfeld ran roughshod over then CIA Director Porter Goss, scuttling the mission at the last moment even as the U.S. forces were boarding planes for the assault:
But the mission was called off after Donald H. Rumsfeld, then the defense secretary, rejected an 11th-hour appeal by Porter J. Goss, then the director of the Central Intelligence Agency, officials said. Members of a Navy Seals unit in parachute gear had already boarded C-130 cargo planes in Afghanistan when the mission was canceled, said a former senior intelligence official involved in the planning.
Mr. Rumsfeld decided that the operation, which had ballooned from a small number of military personnel and C.I.A. operatives to several hundred, was cumbersome and put too many American lives at risk, the current and former officials said. He was also concerned that it could cause a rift with Pakistan, an often reluctant ally that has barred the American military from operating in its tribal areas, the officials said.
In contrast, candidate Barack Obama was crystal clear that he would unilaterally strike Al Qaeda targets in Pakistan with or without permission from Islamabad.
In August 2007, as you'll recall, Senator Obama received a hellstorm of criticism for his statements regarding attacking Al Qaeda bases in Pakistan. As part of a broad - and forceful - foreign policy speech on August 1, Obama rightly took the Bush administration to task for the failure of its "no safe havens" doctrine in Pakistan. Regarding the Al Qaeda sanctuary safely nestled along the Afghan border, Obama declared:
"If we have actionable intelligence about high-value terrorist targets and President Musharraf won't act, we will."
And while Republican presidential candidate John McCain in February 2008 blasted Obama's advocacy of unilateral American attacks against Al Qaeda targets in Pakistan, by the beginning of that year the Bush administration itself was already carrying them out.
From almost the inception of his campaign, Obama argued that the diversion of U.S. military assets from Afghanistan to Iraq meant that "the people who were responsible for murdering 3,000 Americans on 9/11 have not been brought to justice." In a June speech, Obama highlighted McCain's denial of this inescapable point:
"We had al Qaeda and the Taliban on the run back in 2002. But then we diverted military, intelligence, financial, and diplomatic resources to Iraq. And yet Senator McCain has said as recently as this April that, 'Afghanistan is not in trouble because of our diversion to Iraq.' I think that just shows a dangerous misjudgment of the facts, and a stubborn determination to ignore the need to finish the fight in Afghanistan."
During a major national security address on July 15, 2008, candidate Obama restated his case:
"The greatest threat to that security lies in the tribal regions of Pakistan, where terrorists train and insurgents strike into Afghanistan. We cannot tolerate a terrorist sanctuary, and as President, I won't. We need a stronger and sustained partnership between Afghanistan, Pakistan and NATO to secure the border, to take out terrorist camps, and to crack down on cross-border insurgents. We need more troops, more helicopters, more satellites, more Predator drones in the Afghan border region. And we must make it clear that if Pakistan cannot or will not act, we will take out high-level terrorist targets like bin Laden if we have them in our sights."
Throughout the summer and fall of 2008, the Pentagon and U.S. commanders in the field made clear they agreed with both Barack Obama's assessment of the war in Afghanistan and Pakistan and his call for deploying additional resources there.
From the moment he entered the White House, President Obama's attitude towards the crime, corruption and politicization of the Bush Justice Department has been to "look forward and not backwards." As we've seen for the third time in just the last several days, that's working out just fine for the Bush lawyers.
On Wednesday, prosecutor Nora Dannehy announced she would bring no charges against Alberto Gonzales, Karl Rove, Harriet Miers, Monica Goodling or any of the key players behind the purge of 9 U.S. attorneys. That scandal, part of a larger effort to target Democratic politicians and suppress Democratic voter turnout, will go unpunished despite the key roles of Rove and Miers, and the apparent perjury of former Attorney General Gonzales. As Dannehy, selected by Gonzales' successor Michael Mukasey, summed it up:
"Evidence did not demonstrate that any prosecutable criminal offense was committed with regard to the removal of David Iglesias," the Justice Department said in a letter to lawmakers Wednesday. "The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias."
Prosecutors also said there was insufficient evidence to charge someone with lying to Congress or investigators...
Dannehy faulted the Justice Department for firing Iglesias without even bothering to figure out whether such complaints were true. That indicated "an undue sensitivity to politics on the part of DOJ officials who should answer not to partisan politics but to principles of fairness and justice," the Justice Department wrote in its letter.
But that was not a crime, and was not an effort to influence prosecutions, the letter said.
That slap on the wrist for the Bush legal team followed another this week. Scott Bloch, the disgraced Bush DOJ lawyer convicted for withholding information from Congress about files that he ordered be erased from office computers, will likely be given probation. While ethics advocates like Debra Katz of the Government Accountability Project argued probation for Bloch "understates the true scope and impact" of his crimes and "would represent a miscarriage of justice," Assistant U.S. Attorney Glenn Leon apparently had no issue with it:
While the charge carries a sentence of up to six months in prison, prosecutors did not object to Bloch's request for probation, noting that he has no criminal history and faces a likely sanction on his ability to practice law. Bloch works at the Tarone & McLaughlin firm in Washington.
While Scott Bloch for now is still practicing law, Bush torture team architect Jay Bybee sits as a judge on a federal court. Among other things, Bybee, as you'll recall, affixed his name to the August 2002 memo largely authored by Office Legal Counsel rubber stamp John Yoo, a document which proclaimed that torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Now in closed-door testimony to a House Committee, Bybee revealed that CIA interrogators may have exceeded even his almost-anything-goes guidelines:
Jay S. Bybee, who headed the department's Office of Legal Counsel, told investigators in May that he never approved some interrogation techniques that detainees say were used against them, including punching, kicking and dousings with cold water. Techniques his office did approve, such as waterboarding, or simulated drowning of terrorism suspects, were used excessively, Bybee said.
Emptywheel: Who is lying? The torturers? Or John Yoo?
Danger Room: U.S. Soldier on 2007 Apache Attack: What I Saw
his vorpal sword: Hart has written a fascinating, and very detailed post about an old boys’ club, together for decades, and their selfless devotion to ordinary Americans like you and me. These guys keep changing the names and the offices, the issues and the addresses, but it is, in fact, a small core of “libertarians” attached to Charles and David Koch.
Newsifact: GOP Senator who looks like a tortoise, keeps trying to slow down reform legislation
The Reaction: Cheneyesque 'tough talk' from inside the GOP crazy house. That Americans could wind up dying as a result of this kind of irresponsible posturing isn't a consideration for Real Man Rubio
As the Scooter Libby affair showed, no one circles the wagons like the Republican Party and its conservative allies. Now that Bush torture architects John Yoo and Jay Bybee barely escaped disbarment in the final version of the report from the Justice Department's Office of Professional Responsibility, the right-wing counterattack and near orgasmic celebration is well underway. Leading the clarion call is none other than John Yoo himself, who in his Wall Street Journal op-ed Wednesday proclaimed his legacy of unlimited war powers - and a virtually unlimited regime of detainee torture - "my gift to the Obama presidency."
Following the cheerleading from the usual Republican mouthpieces including the National Review, Commentary and the Wall Street Journal, Yoo took a victory lap Wednesday, stepping over the broken bodies of American prisoners and shattered national honor. Rewriting both the history of the OPR report and its conclusions, Yoo crowed:
Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe...
Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.
Of course, as the likes of Jack Balkin and Glenn Greenwald documented in detail, only by avoiding ultimate condemnation and exile from the legal community could John Yoo claim to have won "a drawn-out fight." As Greenwald pointed out, OPR's David Margolis assessment of Yoo's legal framework for the commander-in-chief's power to torture hardly constituted exoneration, let alone an endorsement. On page 67, Margolis concluded:
For all of the above reasons, I am not prepared to conclude that the circumstantial evidence much of which is contradicted by the witness testimony regarding Yoo's efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's finding of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.
The shorter version is that David Margolis accepted Yoo's George Costanza defense of torture. That is, it's not a war crime, if you believe it.
Look at the bombing of Hiroshima and Nagasaki. … Could Congress tell President Truman that he couldn’t use a nuclear bomb in Japan, even though Truman thought in good faith he was saving millions of Americans and Japanese lives? … My only point is that the government places those decisions in the President, and if the Congress doesn’t like it they can cut off funds for it or they can impeach him.
Although the idea of the president hitting the red button to launch a nuclear strike is popular for movies, the significant impact that such a decision would entail ensures make one hope that this is not a unilateral decision, unless Russian nukes are inbound and our government leadership has only minutes to decide whether to retaliate in kind. So I wonder what Professor Yoo thinks about President Ronald Reagan's view on nuclear weapons?
“A nuclear war cannot be won and must never be fought. The only value in our two nations possessing nuclear weapons is to make sure they will never be used. But then would it not be better to do away with them entirely?”
UPDATE:Good point by bloglogger, Yoo couldn't even get the numbers right. The proposed US invasion force was numbered in the low hundreds of thousands, not to mention the Japanese who would have resisted the landings on Japan. Certainly it was not millions of Americans and Japanese lives at stake.
UPDATE 2:Commenter John Purdue and others are convincing me that the president does in fact have the power to unilaterally pop a nuke. Let me suggest that the ethical thing that the president would do is to consult with his staff and Congressional leaders before unilaterally causing a pre-emptive strike. And I still wonder as to his interpretation of Truman's actions... Thanks commenters for the discussion.
John Yoo, America's favorite war crimes cheerleader, stands by his previous statement that the president has the unilateral power to order a nuclear strike without congressional authority. How happy it makes me, that he's carefully nurturing an entire new crop of amoral and lawless constitutional lawyers! (Scott Horton wonders if there wasn't a quid pro quo in the Yoo torture memos.)
First of all, Yoo’s claim that Congress could cut off funds for a nuclear attack or impeach the President after he makes the decision to launch nuclear weapons does little to prevent a nuclear attack. Even assuming that a supermajority of senators supported taking swift action against a rogue President, the fact that Congress subsequently cut of funding for nuclear launches or removed the President from office would be little comfort to the tens of thousands of people already killed in the attack. Yoo’s solution amounts to shutting the barn door long after the horse has fled.
More importantly, Yoo misrepresents the law. As far back as 1804, a unanimous Supreme Court held in Little v. Barreme that Congress has sweeping authority to limit the President’s actions in wartime. That case involved an Act of Congress authorizing vessels to seize cargo ships bound for French ports. After the President also authorized vessels to seize ships headed away from French ports, the Supreme Court held this authorization unconstitutional on the grounds that Congress’ decision to allow one kind of seizure implicitly forbade other kinds of seizure. More recently, in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court held that the President does not have the power to unilaterally set military policy (in those cases with respect to detention); he must comply with statutory limits on his power. Taken together, these and other cases unquestionably establish that Congress has the power to tell the President “no,” and the President must listen.
John Yoo is a moral vacuum, but he is also a constitutional law professor at one of the nation’s top law schools and a former Supreme Court clerk. It is simply impossible that Yoo is not aware of Little, Hamdi and Hamdan, or that he does not understand what they say. So when John Yoo claims that the President is not bound by Congressional limits, he is not simply ignorant or misunderstanding the law. He is lying.
Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty
Cassel: Also no law by Congress -- that is what you wrote in the August 2002 memo...
Yoo: I think it depends on why the President thinks he needs to do that.
For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset: an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.
While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry...read on
There's plenty more to be disturbed about in this report.
Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales.
After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
That's excellent news. Now we know that all the president ever has to do is call in a legal functionary and have him write a memo legalizing whatever he wants to do and he's good to go. I feel safer already.
You know how I feel about Judge Bybee already and Margolis should have done the right thing. Did anyone order him to make these changes? And it sure pays to stack the OLC with your own flunkies for personal gain. Look what Bush and Cheney are getting away with because of these cronies.
