Blog on the Run: Reloaded

Monday, June 18, 2012 8:19 pm

“Irony has been drawn and quartered”

At least at first glance, President Obama’s executive order on immigration appears to be 1) constitutional, 2) well within the scope of precedent with respect to White House executive orders, 3) humane and 4) quite possibly a good idea.

This has not prevented some people from complaining about it. I’m willing to be convinced it’s wrong and even unconstitutional if someone can come up with the right evidence. What I’m not willing to do is be lectured by the fact-challenged, torturerotic Wansee groupie John Yoo:

President Obama’s claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the unprecedented stretching of the Constitution and the rule of law. He is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).

Zandar dismisses this with the contempt it deserves:

Yoo’s own theories on the plenary executive are phenomenally daft, but claiming that the President has the authority to declare unending bloody war on tens of thousands of Iraqi and Afghan citizens but doesn’t have the authority to direct enforcement procedures of executive branch agencies is so absolutely douchetronic that Yoo probably needs to waterboard himself for a while just to balance the scales of the universe.

And, finally, Yoo demonstrates not only his ethical illiteracy and constitutional ignorance, but also a fundamental inability to count.

So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices.

The federal law in question was the DREAM Act, a congressional policy choice that passed the House and was filibustered in the Senate despite getting a 55-vote majority. In the Framers’ day, numbers like that meant it could become law if the president signed it or declined to veto it. But that fact doesn’t prevent Yoo from lying, once again, about the Framers:

That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.

Bitch, please. Google “Bush signing statements” and then pull your head out of your rear end and get on the first airplane to The Hague — preferably in irons.


Tuesday, May 11, 2010 5:42 pm

If Obama and Holder were honest and ethical …

… and if wishes were ponies, the Justice Department would have coughed up information related to the destruction of e-mails on torture a long, long time ago or else John Conyers, chairman of the House Judiciary Committee, who asked for the info on March 1, would’ve issued subpoenas and then held some senior Justice officials in contempt and locked their butts up when the information was not forthcoming.

Here in the real world, it falls to the nonprofit Citizens for Responsibility and Ethics in Washington to take the legal action that Justice itself or the Congress should have taken long ago. And, sadly, CREW cannot, itself, lock up recalcitrant Executive Branch stonewallers.

Still, at some point, some judge is going to show less patience than John Conyers, and I wouldn’t want to be working for Eric Holder when that happens.

Wednesday, April 28, 2010 5:20 am

Well, somebody’s lying …

… and in this case it’s either government torturers or John Yoo.

Someone needs to go to prison. Actually, they all do, but as was established during the Clinton and Bush 43 years, you can get in legal trouble for perjury but not torture, so whoever lied — whether it was the torturers or Yoo — needs to be prosecuted.

Tuesday, April 13, 2010 11:11 pm

The OTHER report on John Yoo

Some months ago, the Justice Department’s Office of Professional Responsibility issued a scrubbed report saying that by writing memos permitting torture, then-Justice officials John Yoo and Jay Bybee, now a Berkeley law professor and a federal appeals judge, respectively, had showed bad judgment but hadn’t committed “intentional professional misconduct,” which would merit disbarment.

I say “scrubbed” because the professional staff who prepared the report originally did conclude reach a misconduct conclusion, but a longtime Justice honcho, David Margolis, overruled them. (I examined the ridiculosity of Margolis’s action here.)

But torture wasn’t the only thing Yoo was going under the microscope for defending. He also was — and remains — under investigation for defending the idea that the President can order his fellow citizens wiretapped without a warrant. As it happens, a federal judge has finally, and officially, called bullshit on that notion. So that report will make interesting reading, too, even if Margolis once again steps in to get Yoo off the hook. And don’t bet that won’t happen: Margolis is a Justice lifer, for good or ill, and his current bosses appear to want that power just as badly as his old ones did.

Friday, March 19, 2010 8:47 pm

Who says conservatives have no sense of humor?

Filed under: Fun,I want my country back. — Lex @ 8:47 pm
Tags: ,

Certainly not The American Conservative:

Mr. Yoo served from 2001-03 in George W. Bush’s Office of Legal Counsel, where he wrote the memos authorizing the use of torture on 9/11 detainees. Yoo is a law professor at the University of California, Berkeley, Torquemada Fellow in Information Studies at the American Enterprise Institute, and author, most recently, of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.

Sunday, February 28, 2010 10:37 pm

Prosecute ’em all, and let the courts sort ’em out

Filed under: I want my country back. — Lex @ 10:37 pm
Tags: , ,

One “defense” offered by former Justice officials John Yoo and Jay Bybee to the offensive suggestion that they tried to circumvent ignored international law banning to approve torture basically amounts to, “Well, if you’re gonna go after us, you’ve got to go after everybody else who said it was OK, too!”

Guys, I’m more than fine with that. Heck, I’d even raise taxes to pay for it. Just sayin’.

Thursday, February 25, 2010 11:39 pm

Lock him up

More evidence, were more needed, that Justice Department official David Margolis has crossed a line no lawyer should cross.

Who watches the watchers?

Related: During his tenure as chairman of the Senate Intelligence Committee between 2002 and 2007, Republican Sen. Pat Roberts of Kansas told the CIA that destroying evidence of crimes was just dandy with him. Have I mentioned lately how much I miss Nancy Kassebaum?

Wednesday, February 24, 2010 11:18 pm

I couldn’t agree more

ICTJ: We need more investigation of John Yoo and Jay Bybee:

“A full accounting of US policy on torture following the attacks of September 11, 2001 is more important than ever,” said Hanny Megally, ICTJ’s Interim President. “The report is enlightening and chilling. It relates in detail how the lawyers tailored their memos to justify torture and to prevent accountability, marking a critical turning away from US respect for the rule of law. The United States will only manage to fully reverse this devastating policy and the actions it empowered by reaffirming accountability as an indispensable control on the abuse of power. This requires an independent investigation of the full story of US counterterrorism operations and abuses, prosecution of those most responsible for wrongdoing, continued reform of laws and institutions to prevent abuses in the future, and appropriate redress for victims of torture,” he concluded.

The director of ICTJ’s US Accountability Project, Lisa Magarrell, said that, “The OPR report conveys very clearly that the overriding concern of the White House at the time was not to ensure by careful, objective legal analysis that torture, cruel and degrading treatment of detainees were prevented and violators held to account, as both US and international law require. Rather, the authors of the torture memos went to great lengths to give the White House, CIA and others involved in counterterrorism operations advance legal cover and assurances that they could torture with impunity.” …

I have read the defenses of David Margolis’s report offered (or linked to) by several people who have corresponded with me about this. And for me it comes down to this: Yoo and Bybee, without any legal basis and while ignoring crucial precedent making waterboarding a crime, told the administration not only that it could do what it wanted but also that what it had already done in clear violation of the UN Convention Against Torture was OK.

The UNCAT’s language is simple, clear and unambiguous. It specifically rules out the defenses offered by Yoo and Bybee and their defenders. It explicitly bars treatment even substantially less severe than waterboarding. And, having been signed in ’88 and ratified in ’94 by the U.S., it is, under the Constitution, part of the “supreme law of the land,” not something that can be simply disregarded by a Justice Department bureaucrat.

The Senate Judiciary Committee is supposed to be having a hearing on this subject Friday. Chairman Pat Leahy is a former prosecutor. It would be nice to think that he’ll be asking the right questions, but then this is Leahy we’re talking about. And Greensboro’s own Howard Coble, also a former prosecutor, has been absolutely no damn help on this at all.

(h/t: Jill)

Sunday, February 21, 2010 12:38 am

Bad judgment and then some: Protecting the war criminals makes the lawyers criminals, too.

With all due respect to my friend and neighbor Fred’s high opinion of Justice Department official David Margolis, Margolis’ conclusion that legal memocraft by Bush officials John Yoo and Jay Bybee in 2002 constituted poor judgment but not professional misconduct basically means that there’s no longer any way any American can commit a war crime:

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official – Attorney General John Ashcroft – even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally -”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said:The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

This is the “I’m-putting-my-fingers-in-my-ears-and-chanting-nyah-nyah-nyah-I-can’t-hear-you” school of jurisprudence. John Yoo was arguing that the UN Convention Against Torture, the Geneva Conventions and related U.S. criminal statutes either didn’t exist or existed but don’t apply. (Moreover, he was doing it to cover for crimes that, by May 2002, had already happened, in particular the torture of Abu Zubaydah — a fact of which Yoo and Bybee were aware at the time and of which Margolis had to be aware by the time he began his review.)

Yoo’s legal thinking was so fundamentally flawed that career staffers in the Justice Department’s Office of Professional Responsibility had concluded that Yoo and Bybee’s actions constituted “intentional professional misconduct.” (Do you realize how bad their conduct had to be for other government lawyers to turn on them like that?) That designation could lead to disbarment proceedings; in the case of Bybee, who is now a federal judge, it also could be grounds for impeachment. Not only that, but John Ashcroft — John Ashcroft! — was so certain that what Justice was being asked to bless was wrong that he actually tried to get people pardoned in advance. If he thought there was any way to defend a legal opinion blessing the torture, why do you suppose he thought the torturers would need pardons?

But Margolis, apparently having concluded that “Don’t pretend you can commit crimes against humanity with impunity” is somehow less a self-evident standard than, say, “Don’t intentionally run over pedestrians,” is now overturning the sober consideration of career staff and claiming no harm, no foul. And we’re all just supposed to nod and say “OK” and move on to other things.

Well, hell, no.

As the New York Times observes, Margolis “said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001.” Sorry, but that makes it even worse: It is precisely at the times of utmost stress that the nation’s most senior enforcers of laws must be most vigilant to see that the government follows the law. There’s no “But our buildings just got bombed!” or “But — but — but — we were all SKEEEEERED then!” exception to the U.N. Convention Against Torture. Part 1, Articles 2 and 3, specifically state:

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Mr. Margolis, Fred doesn’t bestow praise lightly, and I don’t take his regard for you lightly. But from where I sit, you’ve just made yourself an accessory to torture and murder as well as another candidate for disbarment. Sanctioning an argument that the president has the legal right to order another Lidice isn’t just poor judgment, it isn’t just intentional professional misconduct, it’s also criminal lunacy and its perpetrator is a menace to humanity.

And if all I can do about it is scream in outrage in the middle of the night, well, at least I’m going to do that.

UPDATE: Law prof Jonathan Turley rips Margolis a new one:

I mean, “bad judgment” is when you make unfortunate choices in dinner guests; it’s not when you support a torture program. And what we’re seeing right now is the dismantling of precedent that we created at Nuremberg, when we said that you can’t facilitate war crimes as lawyers and say that it was simply bad judgment. Everyone who commits war crimes often thinks about their own accountability. They often go to lawyers to facilitate them. That’s why they were so critical [of German lawyers] at Nuremberg. And what we’re seeing now is that we’re just treating it like just a bad day, and it’s more than that. What we’re losing in all of this is one of the core principles of Nuremberg. …

If you can’t be held accountable for facilitating war crimes, something that they don’t really discuss in this report, then when can you be held accountable? I mean, this is it. I mean, this is the worst-case scenario. And so what the Justice Department has done is carved out for itself a standard that it can never fail, that even supporting torture is just bad judgment. In this report, it’s astonishing what you read. With Bybee — who is a judge, who’s sitting in judgment on others right now — is accused in this report of leaving out critical cases, of — of leaving out weaknesses. In one case he said he just assumed that Gonzalez would know about the limitations of this type of executive claim, or the limitations on a good-faith defense. He just assumed he’d know that, and instead they produce this report, which was a roaring endorsement of torture. That’s being treated as, in the report, as, quote, incomplete legal analysis. It’s not incomplete. It’s, it’s willful blindness. It’s an attempt to defend a flawed legal theory to support a torture program. …

A lot of it will be particularly interesting to law professors and legal experts in the extent to which people like Bybee, who really comes off badly in this report, left out critical pieces of precedent, where he was aware of Supreme Court cases that go the other way and he just leaves them out of the memo. In one case they rely on language in the United Nations Convention Against Torture that was never ratified, and yet they treat it as if it were. I mean, that’s the degree of misrepresentation that is in this memo [that Yoo and Bybee wrote]. The Justice Department doesn’t really deal with that and it does certainly not deal with what they’re doing with the Nuremberg standards. Instead they just say that, you know, they’re wrong, they’re incomplete, they’re showing bad judgement, uh, but that’s not something that they should necessarily be punished for, even though people were tortured as a result of their advice. …

If this report [had] existed back in Nuremberg, it would have resulted in acquittals for all of the people that we sentenced. But this is a bloody nightmare for civil libertarians. We have an ex-vice president who’s proudly proclaiming how he’s supported torture. We have a current president who is preventing any serious investigation of torture. If torture is so bad, imagine what it’s like to try to protect alleged torturers, war criminals, and that’s the really dark period we’re finding, where we’re all wondering, “Where did our principles go?”

Former federal prosecutor Marcy Wheeler is doing a line-by-line analysis on the OPR report and Margolis’ work here.

(Revised and updated multiple times after initial posting)

Saturday, January 30, 2010 12:29 am

Odds and ends for 1/29

I’ve already called for impeaching Obama. Looks like we can now add Holder to the mix: A draft report from the Justice Department’s Office of Professional Responsibility that originally found that Bush officials Jay Bybee (now a federal judge) and John Yoo (now a “law” “professor” at Berkeley) committed professional misconduct (which would constitute grounds for impeaching Bybee), the final version was cleaned up to say they showed “poor judgment” only. Granted, fabricating a legal justification for torture out of whole cloth does show “poor judgment,” but it shows criminal intent as well.

Well, OK, it’s a first step: Pravda, of all places, reports that Francis A. Boyle, a professor at the University of Illinois College of Law in Champlain, Ill., has requested arrest warrants from the International Criminal Court in The Hague for the arrests of Bush, Cheney, Rumsfeld, Tenet, Rice and Gonzalez for “crimes against humanity” under the Rome Statute, which established the court. For all I know this is an Eastern Hemisphere version of an Onion article, but, hey, a citizen can dream.

Well, this bites: More than 30% of Triad mortgages will be under water by 1Q2011, Deutsche Bank estimates.

Historians finally weigh in Jonah Goldberg’s “Liberal Fascism.” Only two years after the fat, lying putz laughed his way to the bank. Thanks a ton, guys.

Banksters organize protest of their treatment … indoors, because it was too cold to go outside. Power to the people!

Bloomberg’s David Reilly asks a good question about this week’s bankster-related developments: Where’s the anger? (Besides Chez Blog on the Run, of course.)

Major-league media?: The Los Angeles Times’ Andrew Malcolm keeps using the phrase “discretionary spending.” I do not think that phrase means what he thinks it means.

Every little bit helps: Somali “pirates” pledge aid to Haiti. (Somali pirates’ est. 2008 income: $150MM+).

Possibly the most entertaining appeals court ruling of the year, and it’s still only January: Gender discrimination in the workplace as manifested by rude language (Oh, so NSFW, by the ruling’s own standards).

What’s stopping the Senate from ramming through a public option in reconciliation? I’m just askin’, on account of 51 breathing senators are on records as supporting one. Seriously, Joe Lieberman can go to hell.

Party of fiscal responsibility, my butt: Every single Republican senator voted Thursday against a new pay-as-you-go rule. Every single Democratic senator voted for it. Remind me again, please, who the grownups are. Quoth commenter Chad N. Freude at Balloon Juice: “They are opposed to pay-as-you-go because they are opposed to go.”

Whoux Dat?; or, There’s a reason they call it the No Fun League: Because you can’t abbreviate No Brains League as NFL. No Frontal Lobe, maybe. (h/t: DivaGeek)

The U.S. economy shrank 2.4% in 2009, the worst calendar-year performance since 1946.

California Senate approves single-payer health-care system; the Governator vetoes it on the laughable grounds that the state “can’t afford it.” Dude, you pay either way, and with single payer, there’s an excellent chance you’d pay less.

Terrorist convicted: The jury deliberated only 37 minutes before finding Scott Roeder guilty of first-degree murder for shooting abortion provider Dr. George Tiller in the head at point-blank range. Roeder admitted the shooting and also testified that he considered only chopping off Tiller’s hands instead of killing him. What a great humanitarian. Memo to New York: If Wichita can try a terrorist, so can you. Memo to the Republicans: Americans are beyond tired of government by incontinence.

I’m probably the last person to find this out, but the free audio-editing program Audacity can record streaming audio from, apparently, any Web site. This makes me insanely happy.

So Obama got together with some Congressional Republicans today. And it’s John Cole of Balloon Juice, who, despite humerus- and-clavicle- and scapula-scraping surgery a couple of days ago, is flying without painkillers, For The Win: “If Mike Pence really is regarded as one of the deep thinkers for the GOP, I’m beginning to understand why they refused to admit Terri Schiavo was brain-dead.” Although the prez himself does nicely with the runner-up: “I would have implemented those ideas had I found a credible economist who agreed with them …”

Sunday, January 24, 2010 12:08 am

Odds and ends for 1/23

Insider trading at the Fed?: Or tied to the Fed, anyway. Yet one more reason to audit the thing, and I don’t mean just routine annual audits, either.

Meanwhile, over at the New York Stock Exchange, one can also find hinky goings-on.

Prop-trading ban will hit Goldman Sachs a lot harder than Goldman says, according to an independent credit analyst. In the immortal words of Al Capone, I’ll send flowers. If you own Goldman stock, you should consider the strong probability that you’re being lied to.

Roundup of stories on the prop-trading ban and related issues, here.

Whose Kiss of Death is deadlier, Fred Mishkin’s or Alan Greenspan’s? I don’t care as long as at least one of the two works as advertised and Ben Bernanke slithers back off to the private sector.

So if Bernanke doesn’t stay as Fed chair, who should get the job? Zero Hedge nominates John Taylor, whose thoughts on the roots of the current crisis can be found here. I do not agree with everything Taylor believes, but I believe that on balance he would be a substantial improvement on Bernanke. I’d like to know whether someone else might be even better.

Paul Volcker’s rise from exile to the president’s right hand helpfully resurrects a short (well, compared with Barney Frank’s 1,100-page bill) paper on restoring security and stability to the U.S. financial system.

Rx from Ezra Klein: “If Democrats abandon health-care reform in the aftermath of Brown’s victory, the lesson will be that they can’t govern. … A plumber and I both agree that my toilet should work. But if he can’t make it work, I’m not going to pay him any money or invite him into my home. Governance isn’t just about ideology. It’s also about competence and will. That’s where Democrats are flagging.”

Another Rx: The California Supreme Court ruled this week that people with prescriptions for medical marijuana can have/grow all they need, not subject to arbitrary state limits. Yeah, that increases the likelihood of abuse, but there was no medical basis for the old limits. Let doctors make that call.

My BS meter just pegged: The same Lord Hutton who certified, despite questionable evidence, that British weapons inspector David Kelly committed suicide has ordered all records in the case sealed for 70 years.

My BS meter just pegged again: Walter Isaacson reviews the new book by John Yoo in today’s NY Times without ever using the word “torture.”

S.C. Lt. Gov. Andre Bauer says we need to stop feeding poor people because they breed: I am not making this up: “You’re facilitating the problem if you give an animal or a person ample food supply. They will reproduce, especially ones that don’t think too much further than that. And so what you’ve got to do is you’ve got to curtail that type of behavior.” He also called for drug testing for the parents of the 58 percent of S.C. schoolkids who receive free or reduced-price lunch. I think I know who needs the drug test.

Obama adopts another trick from the Bush bag: This time, it’s having the Justice Department’s Office of Legal Counsel retroactively legalize illegal surveillance. So that’s why the Senate never took up Dawn Johnsen‘s confirmation as head of OLC: There’s no way she’d have signed off on this crap.

The pope says priests should blog. I think that’s a great idea, but I think they’ve got other things to do first.

And finally, DJ Earworm’s annual remix of the Billboard magazine Top 25 pop songs of the year, for 2009. This year’s is called “Blame it on the Pop”:

Thursday, December 10, 2009 9:16 pm

Odds and ends for 12/10

Unintentional political zinger of the year: Sen. Ben Nelson, D-Neb., asked whether he would filibuster the health-care bill because of the failure of his anti-abortion amendment, answered, “I have no Plan B.”

Do scientists get tattoos? Why, yes. Yes, they do.

Obama goes all in on torture: He’s asking that a lawsuit against Bush lawyer John Yoo be dismissed. Whom Would Obama Waterboard? Guess we’ll see soon enough.

He wins the Internet: A friend’s Facebook status today: “was just accosted by an angry elf. So I cut the brake line on his sleigh.”

Tuesday, June 2, 2009 10:55 am

Yoo’d think they’d know better

Vigilante stalkers Protesters are picketing lawyer/war criminal John Yoo’s house. Possibly legal, but indoubtably dumb. Yoo has a perfectly nice, PUBLICLY OWNED office where protesters can gather on PUBLIC PROPERTY and make their points just as effectively, perhaps more so.

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