Ever since a batch of Bush-era Office of Legal Counsel memos were released last week--see Neil Lewis at NYT, Kurt Opsahl at EFF, and John Dean's "Beyond the Pale" at FindLaw--their scandalous nature should have been competing with the economy for front-page coverage. For some reason, however, the "liberal" media continues to avoid examining either the memos or their implications. Jack Balkin proclaims "The End of the Yoo Doctrine" and summzrizes:
First, the January 2009 OLC memo disowns the claim [...] that the President has the sole power to decide on conditions of detention and interrogation of captured individuals...
Second, the January 2009 OLC memo disowns the statement [...] that FISA should be interpreted as not restraining the President's ability to engage in warrantless domestic surveillance...
These two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance.
At AlterNet, Marjorie Cohn writes that the memos "reveal a concerted strategy to cloak the President with power to override the Constitution:"
There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.
Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.
Scott Horton's "Last Chance to Get the Bushies" sees Yoo as the coalmine canary that may presage legal accountability for Bush's torture regime:
A new Justice Department report could contain a bombshell that would spell fresh legal trouble for top Bush officials. The report may link controversial memos on civil liberties and torture--written by Justice Department lawyer John Yoo--directly to the White House, putting Yoo and other Bushies in the crosshairs of criminal prosecution. [...]
Sources at the department who have examined this 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.
Scott Horton writes at Harper's that "John Yoo's Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink" and quotes MSNBC's Michael Isikoff:
We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.
Glenn Greenwald, in a typically excellent analysis, observes with dismay that "the documents released yesterday by the Obama DOJ comprise nothing less than a regime of secret laws under which we were governed." Hyperbole? Hardly. Greenwald underscores that "these weren't just abstract theories:"
They served as the basis for many U.S. government actions. Military actions were, in fact, directed at American citizens on U.S. soil (that's what the NSA program was, as but one example). Both legal residents and American citizens captured on U.S. soil were put in cages for years with no trial or charges of any kind. And, of course, the U.S. instituted a systematic torture regime that led to the brutalization and even deaths of many detainees in our custody. [...]
As but one example, we know that the Bush administration was engaged in certain surveillance activities aimed at U.S. citizens that were so patently illegal and wrong that even the right-wing fanatics in Bush's own Justice Department (such as John Aschroft) threatened to resign immediately if they didn't cease, yet we still, to this day, don't know what those domestic surveillance activities were.
Greenwald also observes that:
...the only reason we know about most of it -- such as the CIA's destruction of 92 interrogations videos, at the direction of the White House, despite the direct relevance of that evidence to numerous pending investigations (that's called "obstruction of justice," a felony) -- is because groups like the ACLU (with whom I consult), EFF, the Center for Constitutional Rights and others have been so tenacious about trying to compel its disclosure and combat it. If our political class had its way, even the bits and pieces we've now seen would continue to be hidden in the dark.
Andrew Sullivan, a conservative who didn't give up his principles in the face of Bushism, summarizes:
Just to recap: the last president believed that he had the inherent power to suspend both the First and the Fourth amendments, he had the power to seize anyone in the US or world, disappear and torture them, and ordered his legal goons to come up with patently absurd legal rationales for all of it. And much of official Washington carried on as normal - and those of us who actually stood up and opposed this were regarded as "hysterics". [...]
What we just lived through was an attack on the Constitution of the United States, conducted by the president and vice-president and an array of apparatchiks.The theory undergirding it renders the entire constitution subject to one man's prerogative. The conservative blogosphere - who resolutely ignored this in deference to their Caesar - now bleats about Obama's alleged threat to the constitution!
They'll keep bleating, no doubt--but less and less intelligibly.
links:
OLC memos at the DOJ
comprehensive list of memos from ProPublica