What a Long Strange Trip it’s Been: The Best of the Grateful Dead – that’s that compilation album by the Dead, a two-record LP released in October, 1977. The title comes from Robert Hunter, a line from “Truckin'” – “Lately it occurs to me: What a long, strange trip it’s been.” Yeah, but now we have the memos.
Of course we have the memos – the Bush administration, that took us all on a long and very strange seven-year trip, is nearing its end. Key players depart, one by one – Rumsfeld to Gonzales to Alphonso Patterson with so many others in between – and things shake lose. There’s nothing left to hide – or some things always hidden so carefully are finally being pried loose. Keeping secrets close for nearly eight years takes a lot of energy and discipline. But you always run out of energy. Life is like that – entropy and all that.
So late on Wednesday, April 2, the Associated Press was reporting this:
For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.
That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.
Of course they disavow that view, now. And of course this 2001 memo was written at the request of the White House by John Yoo, at that time the deputy assistant attorney general, and addressed to Alberto Gonzales, when he was White House counsel, before he became an embarrassing Attorney General. If you weren’t a pleasantly disoriented Dead Head – stoned and smiling – back in 2005 you already knew Yoo was a nasty piece of work, even for a lawyer. The White House always turned to Yoo to write and file odd legal opinions – the ones that said whatever the administration was doing was perfectly legal. These opinions were then designated highly secret and filed away. If anyone asked about what was up with what looked like torture, or what looked like a clear violation of the law, like wiretapping US citizens without any probable cause, much less a warrant, the administration could then say not to worry – they had been advised by the Justice Department that all they did was perfectly legal? Could anyone see these legal opinions? No – that would jeopardize national security, letting the bad guys know what we were doing. You cannot have that – if they found out they’d know too much and we could all die. So no one was allowed to see these memos – few in the administration, no one in Congress, and certainly no court at any level. That would be far too dangerous.
Of course the conservative right, with its reverence for the wisdom of authorities that had somehow morphed into a reverence for authority itself, thought this was just fine. You defer to authority. Others steamed. They were dismissed as both unpatriotic and insufficiently serious about the long sweep of history and all accumulated wisdom – or something like that. But the memos are now coming to light.
The one the AP reports on, the memo that argues the president is simply not bound by the fourth amendment to the constitution, the one protecting citizens against unreasonable searches and seizures here in America, is still classified – all thirty-seven pages of it. We only know of it now because it was mentioned in a footnote to a separate secret memo, dated March 14, 2003, the memo saying all laws against torture, or any laws about war crimes, did not apply to the president. That torture memo was released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union. Someone forgot to black out the footnote – “Our office recently concluded that the Fourth Amendment had no application to domestic military operations.”
That’s odd. Domestic military operations? This seem to refer to another document – “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” The administration has that authority? Sure – why not? Exactly what domestic military action was covered by the October memo is quite unclear, but the AP says federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program, or TSP – you know, wiretapping, intercepting and recording all phone calls and emails on US soil, bypassing the normal legal requirement that such stuff be authorized by the secret federal FISA court. On January17, 2007, the White House resumed seeking surveillance warrants from that court, or so they said. No one really believes them.
White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for all the wiretapping – “TSP relied on a separate set of legal memoranda.” And the Justice Department outlined that legal framework in its January 2006 white paper, so all this is no big deal.
But it gets complicated:
The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.
The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.
So the memo was the legal justification for the wiretapping, and no one had any right to see it. Now as it stands the Justice Department is saying this damned footnote “does not reflect the current view of the department’s Office of Legal Counsel.” They now think the fourth amendment is just fine. And the AP reports that Suzanne Spaulding, a national security law expert and former assistant general counsel at the Central Intelligence Agency, said she found the Fourth Amendment reference in the footnote troubling, but added: “To know (the Justice Department) no longer thinks this is a legitimate statement is reassuring.” She seems to be a trusting sort.
The other memo, above the footnote, was the one that, as AFP reports, caused a bit of trouble:
Lawmakers and rights groups on Wednesday blasted the US government’s tactics in the “war on terror” saying a 2003 legal memo had given the military a green light to use torture in interrogations.
The Justice Department memo, dated March 14, 2003 and released on Wednesday, was sent to the Pentagon as it struggled to set guidelines for interrogators.
It argued the US president’s wartime authority exempted them from US and international laws banning cruel treatment.
The AFP item quotes Joe Biden:
Today’s news that the Justice Department gave legal cover to the military to use torture and other cruel and inhuman interrogation techniques shocks the conscience. This memo created the lawless atmosphere that led directly to the abuse of detainees at Abu Ghraib. Those who wrote it and those who approved it should be held accountable.
Well, this eighty-one-page legal opinion was written as the Pentagon sought to draw up a list of approved interrogation methods for use on detainees at Guantanamo Bay, but did it lead to all the rest?
It did let people of the hook:
If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the Al-Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.
Maybe so, but Ted Kennedy said the memo also showed that the administration had “abandoned the rule of law and adopted arguments that could be used by other nations to try to justify the torture of American troops.” His thought – “To protect our own soldiers, this administration needs to repudiate not merely withdraw these shameful and shoddy arguments.”
He was in the minority in that concern – everyone else was syaing the bigger concern was that this had led to Abu Ghraib and all the rest. Amrit Singh, a staff attorney at the American Civil Liberties Union, the folks who had sought and won the document’s release, said the memo “shows that the Justice Department gave virtual carte blanche to the Pentagon to engage in torture.”
And see this exchange from the AFP item:
Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, called the memo “incredibly disturbing.”
“It’s an attempt to write away the legal restrictions prohibiting action like torture, maiming and assault,” Daskal said.
But the Pentagon denied mistreating detainees.
“Our policy is to treat detainees humanely and that has always been the case,” Commander JD Gordon, a Pentagon spokesman, told AFP.
One can define humanely many ways. Rumsfeld was forced, in December 2002, to suspend his list of aggressive techniques – there were those objections from senior military lawyers. But then, because of this memo, a Pentagon working group in April 2003 approved the continued use of “extremely aggressive tactics” – stress positions, nudity, exposure to dogs and hooding. In 2005 Congress limited the interrogation tactics the Defense Department can use – McCain won that round – but a bill passed in February to bar the CIA from using harsh methods including waterboarding was vetoed by Bush. McCain said he was fine with that. McCain is running for president now. He knows he cannot oppose torture. The conservative right despises him enough already.
See James Dobson of Focus on the Family with this:
Mr. Dobson took issue with a litany of Sen. McCain’s positions, including support for embryonic-stem-cell research and opposition to a Constitutional amendment to ban same-sex marriage. Those stances, plus Sen. McCain’s discussion of global warming and his push to outlaw torture and shut down the U.S. prison in Guantanamo Bay, Cuba, have “frustrated” conservatives “whom McCain seems to have written off,” Mr. Dobson said.
McCain needs those votes. And anyway, his 2005 bill, limiting the interrogation tactics the Defense Department can use, turned out to be a bit of a joke anyway. The president added a signing statement, saying that, as he understood this new law, it did not apply to him at all when he was acting as commander-in-chief. It was a nice law and all that – but irrelevant to his duties as he saw them.
Matthew Yglesias, who often writes on such matters, here says he doesn’t think he has “the stomach to try to do any serious original analysis of John Yoo’s now-declassified torture memos.” He recommends the careful legal analysis at Balkinization and just says this:
Yoo aside, you need to really be staggered by the mental processes of his employer. Some subordinate shows up in your office with a memo about how it is, in fact, legal to break all kinds of laws – specifically laws that seek to entrench a few hundred years’ worth of conventional wisdom about the moral and political unacceptability of torturing people. What do you do? Fire the guy? See if you can recommend that he get counseling? Not if you’re George W. Bush and Dick Cheney, if you’re those guys you adopt the legal reasoning and move on to the torturing.
Except eventually it becomes clear that the torture’s gotten out of hand – it’s happening to innocent people, it’s spreading throughout the US detention and interrogation system, it’s producing all kinds of possibly spurious information, etc., so naturally you respond by classifying the whole thing and pretending that it would imperil national security for everyone to know what a bunch of sickos you are. It really makes the stomach churn.
It had been a long strange trip. Yglesias is carsick. But Marty Lederman at Balkinization is clear here:
The Yoo memo effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which was addressed only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. None of those statues, you see, limits the conduct of war if the President says so. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004.
Glenn Greenwald is more explicit:
John Yoo’s Memorandum, as intended, directly led to – caused – a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.
… While Yoo’s specific Torture Memos were ultimately rescinded by subsequent DOJ officials – primarily Jack Goldsmith – the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws – from our nation’s spying and surveillance statutes to countless Congressional oversight requirements – and to detain even U.S. citizens, detained on American soil, as “enemy combatants.” So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.
Yeah, we’re all Dead Heads now. No one paid attention. Now we may be what the world fears we are. And all this is only deepened by Pillippe Sands’s Vanity Fair article on how torture under the Cheney presidency began, and spread:
Gonzales and Haynes laid out their case with considerable care. The only flaw was that every element of the argument contained untruths. The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.
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.
As for the details, see Bonnie Goldstein in Slate with The Torture Memo:
The memo was written in March 2003 by John C. Yoo, then a deputy assistant attorney general, and was rescinded nine months later by Jack Goldsmith, who was briefly head of the Justice Department’s Office of Legal Counsel. Yoo argues that neither Fifth Amendment due-process guarantees (Pages 6-10) nor Eighth Amendment prohibitions against cruel and unusual punishment (Page 10) “extend to alien enemy combatants held abroad.” Further, “federal criminal law” does not apply to “interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict” (below). The memo interprets the U.N. Convention Against Torture in determinedly narrow fashion and asserts that the Geneva Conventions (violations of which by or against Americans were criminalized by Congress under the War Crimes Act) does not apply to al-Qaida prisoners.
The full memo follows that, if you’d care to read it. Paul Kiel offers more analysis of the process by which all this happened here:
As Jane Mayer reported in The New Yorker two years ago, Yoo’s March, 2003 memo to Pentagon General Counsel William Haynes came to be implemented by a two-faced process.
In part to satisfy internal administration critics of the Pentagon’s interrogation program at Guantanamo Bay, Secretary of Defense Donald Rumsfeld in 2003 convened a “working group” of lawyers from all branches of the armed services to develop new interrogation guidelines. That group included Alberto Mora, the former general counsel of the U.S. Navy, who outlined his efforts to prevent the use of torture in a 22-page memo (pdf) that was ultimately made public, and who was the focus of Mayer’s piece.
But Yoo’s memo, issued shortly after the working group began meeting, pretty much determined the direction of where the working group would end up. While Mora and other lawyers concerned about the use of torture were able to see a draft version of the working group’s report, Rumsfeld ultimately signed a final version of the report without the knowledge of several lawyers who were ostensibly its authors. That report was then related to Major General Geoffrey Miller, who was then in command of Gitmo. Soon after, the Pentagon sent him to Iraq to advise officials there on interrogating Iraqi detainees.
At the same time, Haynes publicly assured Congress and human rights groups in a June 25, 2003 letter that “it is the policy of the United States to comply with all its legal obligations in its treatment of detainees.” The Pentagon had not authorized the use of torture, or cruel, inhumane, or degrading treatment. Mora told Mayer that after he saw Haynes’ letter, he’d “sent an appreciative note to Haynes, saying that he was glad to be on his team.”
So legal critics within the Administration had been allowed to think that they were engaged in a meaningful process – it was a charade.
Marty Lederman, again, here:
When will Congress insist upon hearings at which Geoffrey Miller, Jim Haynes, Donald Rumsfeld, and other DOD officials, explain why they kept the Yoo memo and the Working Group Report secret – undisclosed even to the Working Group itself – and why they briefed Miller on Yoo’s multiple theories of legal absolution on his way out to Iraq?
There will be no hearings. The administration is ending. It doesn’t matter. It was just a long strange trip. And it’s almost over.
See “dday” here:
The closed loop here is self-perpetuating. The DoJ writes a memo saying that the President has virtually unlimited power in wartime. The CIA and the Pentagon then takes the memo and uses it as proof of legality for their crimes. So we have an executive branch validating the rest of the executive branch, essentially a one-branch government that writes, executes and adjudicates the law.
There is no question that John Yoo is a war criminal; he provided the legal theories that the executive branch follows to this day, even though the Defense Department vacated this particular memo in 2003. The idea that the statement “this memo is no longer operative” somehow inoculates the Administration from past crimes is ludicrous.
… A lot of this business abut Yoo was well-known. But we never saw the evidence until today. This was the touchstone for the Pentagon to send out thugs like Geoffrey D. Miller to torture people. You can meet these people and shake their hand. Your tax dollars were used to do them harm, and a lot of them were innocent of any crime. Even if they weren’t, the shattering of our moral authority in this reign of Bush is unquestionable. We have completely lost ourselves.
It has been some trip. And Scott Horton at Harpers adds even more:
… And of course, the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make – they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.
And the upshot of that is this:
They have dragged the Department of Justice, as an institution, straight into the gutter. And amazingly, five years later, it continues to sit there in the muck, unable to stand up and step out of it.
Of course they missed some things along the way. The legal analyses were so poorly crafted – making the sorts of sophomoric arguments that would land a law student a failing grade on an examination, that Justice was forced to rescind them. It immediately crafted new opinions, which it continues to keep under lock and key, with the certain knowledge that when they are disclosed the resulting public uproar will force their withdrawal as well. This is the quality of legal work that emanates from the Justice Department under Alberto Gonzales, and now, Michael Mukasey.
But Horton says they also missed something really important, the established precedent the established precedent during the Nuremberg Trials under United States v. Altstoetter – “the conduct of the torture lawyers is a criminal act not shielded by any notions of government immunity.” Oops.
Barry Yourgrau at The Huffington Post has a good secondary question: Why Is Torture Lawyer John Yoo Still Teaching at Berkeley?
Who knows? The long, strange trip isn’t over yet.