Pixie Dust and the John Yoo Memos
Last week our own nimble fingered Christy Hardin Smith courageously live blogged a hearing convened by Russ Feingold to examine what he is calling "Secret Law." BTW, the whole idea of secret law is kind of an oxymoron because how can a populace obey a law it doesn’t know exists or know if anyone else is violating a law that they don’t know exists? But I digress into logic, silly me, we’re talking about Bushworld–a place where the laws of logic don’t apply!!!
The New York Times is reporting that the DOJ is going to turn over all or parts of yet another batch of secret legal opinions. There seems to be an inexhaustable supply.
In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.
At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.
Ahem, that would be Mr. Elwood confirming that Marcy Wheeler has been right all along about the Pixie Dust?
Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.
Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration’s legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearances remain in force.
J. William Leonard, the top official overseeing document classification from 2002 until January, challenged the classifying of legal analyses. Referring to a Justice Department opinion in March 2003 on interrogation that was released this year, Mr. Leonard said that it should not have been classified and that marking it “secret” showed “either profound ignorance of or deep contempt for” classification rules. Even with the release of the memorandum, several major legal opinions on interrogation remain secret. Though the Justice Department is offering to show those opinions to the Intelligence Committees, officials gave no indication that any of the opinions would be made public.
Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration’s contention that it can selectively modify executive orders “turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret.”
That reference to the Federal Register reflects the past practice of actually PUBLISHING Executive Orders, so the rest of us would know what they said. Oh, and in olden days (read, before the Supreme Court annointed Shrub to be King) OLC opinions were routinely published, too.
According to the Congressional Research Service [pdf] Report on Presidential Claims of Executive Priviledge (Hmmm? It was updated in April 2008, I wonder who ordered that up?)
recent appellate court rulings cast considerable doubt on the broad claims of privilege posited by OLC in the past and now by the Clement Memo and the July 10, 2007, OLC opinion on witness immunity. Taken together, Espy and Judicial Watch arguably have effected important qualifications and restraints on the nature, scope and reach of the presidential communications privilege.
So, Bill Leonard says that legal opinions ought not be classified in the first place. CRS doesn’t think Shrub’s various invocations of Executive Priviledge are going to hold much water. It seems to me that if a branch of Congress were to go to court to get any of this stuff, it would probably win, just sayin’s all.
Bottom line, there are still more Yoo torture memos out there. We already knew that because he refers to them in footnotes of the memos we already know about. There is also evidently a memo or Executive Order floating around somewhere in secretspace, that establishes that Marcy’s Pixie Dust is real. I’m going to go out on a limb here and guess that John Yoo may have written that one too.
The hallmarks of a John Yoo memo seem to be 1) the laws of logic do not apply, 2) don’t cite any statutes or cases that clearly forbid the thing you want to enable, 3) misapply and take quotes out of context from the cases you do cite to falsely claim that they stand for something (usually the direct opposite) of what they actually stand for, 4) completely ignore the real world consequences that will ensue if anyone actually acts on the
fig leaf advice given in the memo.
Question for you legal philosphers out there: If we know that the leading expert on classification of documents says that a document has been illegally classified, and if we can ID that document with sufficient specificity–say because John Yoo put its title and date of non publication in a footnote–should not the legislative branch be able to bring an action before the judicial branch for a writ of mandamus to compel the de-classification of that document?
Sixteenth in a series on torture and the law
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