John Yoo smokes crack — for Obama, or what?

The legal thugmeister behind the worst of BushCo's anti-civil liberties actions has written a howler of a NYT op-ed. In it, he claims that President Barack Obama's Supreme Court nominee, Elena Kagan, wants to cut back on executive power.

Yes, you read that right.

The whole thing is classic Yoo. Among the whoppers?

The claim that Congress cannot retake any degree of control of a federal agency from the president.
In her law review article, Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. “I acknowledge that Congress generally may grant discretion to agency officials alone,” Ms. Kagan wrote, and “the president must respect the limits of this delegation.”

Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea. ...

This is simply wrong. Article II of the Constitution vests in the president alone “the executive power” of the United States. As Justice Antonin Scalia wrote in his dissent from the court’s 1988 decision upholding the constitutionality of the Office of the Independent Counsel, “this does not mean some of the executive power, but all of the executive power.” (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)

From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities, even though the Constitution mentions only the power to appoint, not to remove.
Yoo conflates several different issues of federal agency action here. On the officers' issue, SCOTUS eventually ruled the 1867 Tenure in Office act unconstitutional, and he knows that.

On oversight issues, though, Congress has, and always has, the power to oversee executive agencies, or even the president. Thomas Jefferson, even, dropped his claims to executive privilege when confronted by Congressional demands for papers.

But, that's just one sample. Read the whole thing.

Justice Dept. clears Yoo, Bybee

Justice's original report on John Yoo and Jay Bybee's support for torture has been "softened," says Newsweek. Former Attorney General Michael Mukasey sent the original report back for ... further work.

But, the Obama DOJ isn't distancing itself from the softening of the findings. (Not that that surprises me.)

Ignorance = need for lawlessness, says Yoo

Yep, that’s John Yoo’s latest argument — since we didn’t know what al Qaeda would do after 9/11 we had to break the law to find out!

Well, for starters, since we DID have some idea before 9/11 about a possibility like it happening, and found that out within the law…

Holder ‘torture probe’ a sham and head fake?

The Washington Post mentions the details of what would — and would not — get investigated if Attorney General Eric Holder names a special prosecutor to investigate torture allegations against BushCo members — something Newsweek, in what looks more like a fluff piece, omitted.

(Hat tip to Greenwald, among others.)

Here’s the bottom line:

Sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the "four corners" of the legal memos. . . . The actions of higher-level Bush policymakers are not under consideration for possible investigation.

So, this would be a bottom-feeder investigation, fishing up minnows while deliberately ignoring the sharks — and while pretending the minnows actually are sharks.

Per other links within his post, Greenwald notes that letting John Yoo’s opinion stand as final is essentially Nixonian: “If the president does it, it’s not illegal.” (Tim at Balloon Juice has more.)

Scott Horton claims Holder plans a real investigation, but his claim is undercut by the New York Times, which agrees in broad outline with the Post story linked at top.

Scott, like Glenn, is too smart to fall for sandbagging, at least I think he is, so I don’t know what’s up.

Anyway, to tie back to the Newsweek fluff, rather than this being a sign of Holder’s independence, you have to wonder if this was discussed in detail with the Obama White House.

John Yoo can be sued for torture memos

U.S. District Judge Jeffrey White of San Francisco said Jose Padilla can sue Yoo for “deprivation of Padilla’s constitutional rights.”

The Justice Department, that is the Obama Justice Department, representing Yoo, argued for dismissal of the suit. Although it hasn’t said so yet, you can bet it will appeal.

Hmm, is there also a connection, however tenuous, between this and Obama’s pledge to censor the Abu Ghraib 2.0 pix?

Now, will allegedly “liberal” Berkeley have the balls to give Yoo the boot, tenure or no?

Obama torture apologetics logic undercut

Mark Benjamin succinctly makes the case, based on the details of the just-released Senate Armed Services Committee special report (PDF), that the CIA was engaging in at least “torture lite” BEFORE the Department of Justice’s Bybee-Yoo-Bradbury lawyers’ troika issued what is clearly an ex post facto green light in August 2002.

The Justice Department opinion condoning abusive interrogations did not come out until August, eight months after the Bush administration started putting the program together and presumably well after Zubaydah's torture had begun.

In fact, as Mike Madden notes, the Senate report shows in detail what has already been known, that by the end of 2001, Defense Secretary Donald Rumsfeld was pushing for at least “torture light” if not more.

Oh, and in yet another tie-back to Obama, let’s not forget that this all started, NOT at Gitmo, NOT at Abu Ghraib, but at Bagram Air Base in Afghanistan, the place Obama wants to expand.

It’s going to be a long 45 months. Because you and I will not change the Obama Administration. You can sign 500 petitions, and they will not change Barack Obama.

And, I will refuse to sign any more petitions to Obama anybody else asks me to sign until they pledge to support third-party politics.

Whack Job John Cornyn wouldn’t know international law …

If it swam across the Rio Grande and bit him in the tuchis. So, his claim that President Barack Obama’s nominee to head the Department of Justice’s Office of Legal Counsel, Dawn Johnson, lacks “requisite seriousness,” is simply laughable.

No, what lacks “requisite seriousness,” John, is YOU. You oppose Johnson because of her acerbic tone in writing about the illegalities espoused by the John Yoo-David Addington torture memos when you never did a thing about them yourself.

Note to Alberto Gonzales – don’t plan a Spanish vacation

You may be indicted for trial there -- trial on war crimes related to Gitmo.

You, Doug Feith, John Yoo, David Addington, John Bybee, David Haynes.

Judge Baltasar Garzon, the same judge who nailed Pinochet, has agreed to open a case.

The lies of John Yoo, part 133

Torture advocate and would-be philosophical defender John Yoo claims to be writing about Obama’s executive order requiring the CIA to follow the Army Field Manual on interrogations, but is actually in some alternative universe.

His ludicrous claims include the idea that this would eliminate good-cop, bad-cop routines. Funny… American police departments still do that all the time, Mr. Yoo.

Second, the right to a lawyer doesn’t mean that alleged terrorists won’t still talk to interrorgatos, or can’t still be convicted if evidence is available.

Nor does all evidence have to be produced in open court. In criminal cases ranging from severe child abuse to Mafia racketeering, our court system as now established allows for a variety of private testimony.

Bolton, Yoo give Obama advice

If this isn’t rich. Mr. Torture, former BushCo DoJ legal advisor John Yoo, and Mr. Fuck the World, Senate-unapproved UN ambassador John Bolton, both of whom advised Bush on how to trample over Congress, tell Barack Obama don’t do that in a New York Times editorial.

Trickle-down torture from BushCo exposed

In Vanity Fair, British law professor Phillipe Sands convincingly exposed Bush Administration claims that U.S. torture was done by just a few bad apples as the lies they are.

This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees—lawyers—who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. …

The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse. …

The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves.

That would include “distance and deniability” for this:



But, then, they shot “distance and deniability” in the foot:

On September 25 (2002), as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel.

You don’t get that much more “in the mix” than that. Or this:

Addington talked a great deal, and it was obvious to her that he was a “very powerful man” and “definitely the guy in charge,” with a booming voice and confident style, Guantanamo judge advocate Diane Beaver said. … Beaver spent time with the group. Talking about the episode even long afterward made her visibly anxious. Her hand tapped and she moved restlessly in her chair. She recalled the message they had received from the visitors: Do “whatever needed to be done.” …

Beaver was insistent that the decision to implement new interrogation techniques had to be properly written up and that it needed a paper trail leading to authorization from the top, not from “the dirt on the ground,” as she self-deprecatingly described herself. “I just wasn’t comfortable giving oral advice,” she explained, as she had been requested to do. “I wanted to get something in writing.

There is another reason “distance and deniability” went out the door: the pornographic eroticism of violence, something also on display among troops in Iraq.

The younger men would get particularly agitated, excited even. “You could almost see their dicks getting hard as they got new ideas,” Beaver recalled, a wan smile flickering on her face. “And I said to myself, You know what? I don’t have a dick to get hard—I can stay detached.”

From BushCo lawyers getting their erotic jollies over torture, the ethical bottom is not far away, and the lies over “trickle-up” torture aren’t much more clearly refuted.

From there, Gen. Michael Dunleavy, Guantanamo commander at the time, sent his request for “enhanced interrogation techniques” up the chain to Gen. Tom Hill, head of Southern Command. From there, it went to Joint Chiefs of Staff Chairman Gen. Richard Myers. It’s this process that the administration has used to try to claim torture was “trickle-up.”

After that, Dunleavy was soon replaced at Gitmo by Gen. Geoffrey Miller, and things went from bad to worse. Even tougher interrogation plans were requested for Mohammed al-Qahtani and sent direct to Rumsfeld for approval. Miller then got a vocal, verbal command, apparently from Rumsfeld himself, to go ahead.

We all know that Miller then went on to Abu Ghraib, and by his actions undercut John Yoo’s claims that Gitmo issues were confined to Gitmo. The abuses there began two months after Miller got there. The worry of “expansion” was expressed at that time:

Mike Gelles, of the Naval Criminal Intelligence Service, had shared with me his fear that the al-Qahtani techniques would not simply fade into history — that they would turn out to have been horribly contagious. This “migration” theory was controversial, because it potentially extended the responsibility of those who authorized the Guantánamo techniques to abusive practices elsewhere. John Yoo has described the migration theory as “an exercise in hyperbole and partisan smear.”

Then, of course, came the Military Commissions Act, which gave immunity to Yoo et al. Of course, as the story notes, that’s purely a U.S. matter. Perhaps somebody in Belgium, with its broad-ranging war-crimes law, will (waiting until after Jan. 20, 2009), seek Rumsfeld’s or Yoo’s extradition.

Of course, neither Obama nor Clinton, let alone McCain, would ever grant that. The war crimes the administration committed, along with Bush’s illegal appointment to office, will never be challenged by Democrats, as Ted Rall has repeatedly noted.

But… there is precedent for Addington, Yoo and Gonzales. One of the war crimes trials after World War II put German military lawyers in the dock. The trial of SS lawyer Josef Altstötter, first alphabetically among 16 defendants, was the basis for “Judgment at Nuremburg.”

Beyond that, Article 4 of Geneva’s anti-torture convention criminalizes torture or complicity in it. And, let’s not forget the case of Alberto Pinochet. A European judge in the Vanity Fair story argues that the immunity provisions of the Military Commissions Act might bolster the case for some other country seeking Rumsfeld or Yoo, on the grounds the U.S. legal system will never dealt with them.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

Some detailed snippets from the story include these:

• Doug Feith undercutting and bypassing Myers, and describing with pride his own part in denying Geneva Conventions protections, even those of Common Article 3, to Guantanamo detainees

Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

• How Donald Rumsfeld personally chose Gen. Michael Dunleavy to command at Guantanamo, rather that Dunleavy asking on his own for latitude on interrogations;
• Rumsfeld’s personal sign-off on some of the techniques;
• How Survival, Evasion, Resistance, and Escape (SERE) was the basis of many of the Gitmo interrogations, despite BushCo denials.