It was worse than you thought.

March 2, 2009 7:35 PM

The Obama Justice Department has released nine legal memos from the Bush administration that assert broad extra-Constitutional powers for the president. The memos assert that both the First and Fourth Amendments may be subordinated to the needs of wartime.

The memos were withdrawn by the Justice Department a few days before President Bush left office.

posted by EarBucket (81 comments total)

I'm shocked to find surely this!
posted by Devils Rancher at 7:40 PM on March 2, 2009 [4 favorites]

Today legal memos, tomorrow they uncover mass graves in the White House Rose Garden of Muslims rounded up after 9/11.
posted by Burhanistan at 7:46 PM on March 2, 2009

The CIA destroyed 92 tapes of interrogations.
posted by up in the old hotel at 7:47 PM on March 2, 2009 [2 favorites]

That's because they were uneventful.
posted by gman at 7:49 PM on March 2, 2009 [1 favorite]

LOL, gman. Sorry, that was so perfectly deadpan even in text that I cracked up out loud.
posted by spicynuts at 7:56 PM on March 2, 2009

the 28th ammendment: the first 27 don't count.
posted by sidr at 7:58 PM on March 2, 2009

Can we have the trials yet? That'd help cheer everyone up.
posted by Artw at 8:03 PM on March 2, 2009 [5 favorites]

CIA Realizes It's Been Using Black Highlighters All These Years
posted by Rhaomi at 8:03 PM on March 2, 2009 [16 favorites]

It was worse than you thought.

It could have been worse.
posted by Pastabagel at 8:11 PM on March 2, 2009

Investigate. Prosecute. Incarcerate.

I'd say life in Spandau would be fitting.

I now, they tore it down. But that would give Cheney, Bush et al something to do; they can live in canvas tents, working 8 hour days, 6 days a week, rain or shine until they rebuild it.

By the time the died, and their ashes were scattered in an undisclosed location, they'd know they'd gotten off light.
posted by Relay at 8:17 PM on March 2, 2009

But, but, only criminals would have something to hide! That's why we need to have surveillance on everyone, all the time! Otherwise, how will we protect our freedoms?/But but, only criminals would want to know the laws and basic fundamental workings of their government! That's why we need to classify everything, all the time! Otherwise, how will we protect our freedoms?
posted by yeloson at 8:19 PM on March 2, 2009 [2 favorites]

It was not worse than I thought. Nothing will shock me at this point.
-9-11? These assholes.
-Gas at $4+/gallon? These assholes.
-Gas at $4+ per gallon preceding a sudden "housing crisis" where people suddenly can't pay their mortgages (we actually began going back into debt at this time due to my fuel costs growing to nearly $700/week)? These assholes.
-The gap between the richest and the poorest becoming a chasm? These assholes.
-The middle class shrinking to a blip? These assholes.
-My wife telling me I need to stop this post or else I won't get to sleep and it may possibly ruin my week? These assholes.
posted by GratefulDean at 8:20 PM on March 2, 2009 [8 favorites]

I'd be more impressed with this if the Obama administration was actually taking action to undo Bush's assaults on the Constitution.

Holder saying "we don't torture" (but we won't stop rendition to people who do), and the continued use of the "state secrets" defense ain't cutting it. Not even close.
posted by drjimmy11 at 8:24 PM on March 2, 2009 [8 favorites]

I'd be more impressed with this if the Obama administration was actually taking action to undo Bush's assaults on the Constitution.

Uh, that's what they did. They withdrew the memos.
posted by squorch at 8:29 PM on March 2, 2009

also, I read that tag as "jonny oo"
posted by squorch at 8:29 PM on March 2, 2009

Maybe we could make the trials pay-per-view and goose up the economy a little bit.

Or just put them in a dunk tank.
posted by MCMikeNamara at 8:46 PM on March 2, 2009

Downloaded and kept safe somewhere to read in the future. VERY tempted to actually print them out...
posted by JoeXIII007 at 9:04 PM on March 2, 2009

It could have been worse. — posted by Pastabagel and linked to Wikipedia on the Alien and Sedition Acts

No, this was worse. The Sedition Act was voted on by Congress after public debate and had an expiration term of 3 years, and it essentially made anti-government speech illegal. Bush's letters of marque were meant to stay secret and stay in effect however long Republicans held the Executive Branch, and they essentially exempt the President from the First and Fourth Amendments.

Also, those arrested under the Sedition Act got apologies and money from the government once the Federalists were voted out. Somehow I doubt the victims of Bush's detention, rendition, and torture programs will get reparations...
posted by nicwolff at 9:06 PM on March 2, 2009 [21 favorites]

The CIA destroyed 92 tapes of interrogations.

Tivo was broken. Recording episodes of 24 for training purposes was on a strictly need-to-know basis.
posted by Blazecock Pileon at 9:08 PM on March 2, 2009 [3 favorites]

I'd be more impressed with this if the Obama administration was actually taking action to undo Bush's assaults on the Constitution.

Uh, that's what they did. They withdrew the memos.

Uh not exactly, The Obama administration has been continuing to put forth the Bush administration's most pernicious legal reasoning in court. Including the idea that only the executive branch, not the courts can decide what evidence should be reviewable by judges to determine if crimes were committed by the government and the federal government can come in and simply have lawsuits thrown out by claiming that having lawsuit would reveal state secrets, something that was never done before Bush came into office.
posted by delmoi at 9:14 PM on March 2, 2009 [3 favorites]

I don't know why he'd have to resort to secret memos when he could just abuse a signing statement to nullify whatever items did not suit him.
posted by Rhomboid at 9:22 PM on March 2, 2009

There's a huge difference between a signing statement and a legal opinion like the OLC's. The OLC defines the Whitehorse's official interpretation of the law, whereas the signing statements try to change the law. And furthermore, signing statements only apply to the law that's just been signed, while a legal opinion from the OLC covers all laws and the constitution.

Both signing statements and OLC opinions would have issues in an actual court.
posted by delmoi at 9:29 PM on March 2, 2009 [2 favorites]

--I'd be more impressed with this if the Obama administration was actually taking action to undo Bush's assaults on the Constitution.
-Uh, that's what they did. They withdrew the memos.
Uh not exactly

Bush's Justice Department withdrew the memos in the last days of that administration with a new memo saying that the old memos should not be replied upon and haven't been since 03. Holder released the memos because of public interest. This is obviously to stoke the Truth, Reconciliation, and Prosecute Them Anyway agenda and I hope everyone gets the message.

The Obama administration's actions to preserve certain states secrets powers claimed by Bush are certainly worthy of debate but aren't necessarily indicative of Obama's approach to undoing all of Bush's perversions. It might justify cynicism toward this low cost political act but it's still a good thing that we can finally see these memos.

Seriously, someone in the OLC actually wrote that all a president has to do to become a dictator is to be at war against suspected terrorists. That's good to know. It's just too bad that kind of officially documented reasoning isn't classified as treason.
posted by effwerd at 10:29 PM on March 2, 2009 [1 favorite]

mass investigations, prosecutions, and media frenzy will create J-O-B-S.

there we go. i think ive solved Obama's conundrum.
posted by Glibpaxman at 10:31 PM on March 2, 2009 [3 favorites]

I feel like I'm emerging from a deep dark hole after years of abuse; every one of these sorts of actions leaves me speechless with gratitude and amazement. It's embarassing.
posted by small_ruminant at 10:41 PM on March 2, 2009

Investigate. Prosecute. Incarcerate.

Preferably with some intermediate stage than involves public humiliation and a rigorous pelting with garbage and human waste.
posted by stavrosthewonderchicken at 11:32 PM on March 2, 2009 [3 favorites]

>It was worse than you thought.
>It could have been worse.
Could be raining
posted by blueberry at 12:02 AM on March 3, 2009 [1 favorite]

U.S. Constitution (Article II, Section 1) (revised edition):

I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States, except the parts I don't like.

posted by Civil_Disobedient at 12:17 AM on March 3, 2009

I feel like I'm emerging from a deep dark hole after years of abuse; every one of these sorts of actions leaves me speechless with gratitude and amazement. It's embarassing.

You're obviously not paying much attention.
posted by delmoi at 12:37 AM on March 3, 2009

The Obama administration's actions to preserve certain states secrets powers claimed by Bush are certainly worthy of debate but aren't necessarily indicative of Obama's approach to undoing all of Bush's perversions. It might justify cynicism toward this low cost political act but it's still a good thing that we can finally see these memos.

Another alternative, perhaps overly uncynical: Obama means to keep as much of the excessive powers as possible in order to use them to undo the damage. Once the damage is undone--if he can undo it, in time--he'll scale back the powers.
posted by aeschenkarnos at 1:15 AM on March 3, 2009

It could have been worse.

That's like saying "A billion isn't the highest number." There's no upper bound to awfulness.
posted by JHarris at 1:20 AM on March 3, 2009

"Once the damage is undone--if he can undo it, in time--he'll scale back the powers"

Why? Why would he do that? Because he's nice? I have a plan, why don't you make him.
posted by fullerine at 1:59 AM on March 3, 2009

The Obama administration's actions to preserve certain states secrets powers claimed by Bush are certainly worthy of debate but aren't necessarily indicative of Obama's approach to undoing all of Bush's perversions. It might justify cynicism toward this low cost political act but it's still a good thing that we can finally see these memos.

Obama's position on "states' secrets" is that the declaration of the president that evidence will compromise national security is all that is necessary to keep it out of any and every court in the land. It literally makes the president totally immune to prosecution of any kind, regardless of his actions - nobody has the right to decide otherwise. The president could literally drown a thousand puppies and then declare all relevant evidence is covered by the states secrets privilege, and nobody would be able to do a thing (short of revolution). It does't even matter if there was a thousand pictures documenting the event publicly available on Flickr, it could all be disappeared at the president's whim. This is literally the Obama administration's position on the matter. How is this okay?
posted by mek at 4:18 AM on March 3, 2009 [1 favorite]

It's the song, not the singer.
posted by Kirth Gerson at 4:27 AM on March 3, 2009

Not when Louis Armstrong sang it
posted by y2karl at 4:45 AM on March 3, 2009 [2 favorites]

Obama's hawkish side is becoming clearer, with the increase in military spending even amidst this economic crisis, his caving as President-elect (I believe) to allow immunity to the telcoms, his desire to commit troops to Afghanistan...it goes on. He impresses me more than I ever expected to be impressed by a U.S. president, but Obama's stances on the military brings him right down the ground for me. JAFP.
posted by zardoz at 5:01 AM on March 3, 2009

I'd like to use these plenary powers against the far right before dismantling them.

They made the bed. They should get to lie in it. In a cell at Gitmo.
posted by fourcheesemac at 5:13 AM on March 3, 2009

Not when Louis Armstrong sang it

I didn't vote for him.
posted by Kirth Gerson at 5:58 AM on March 3, 2009

I'd like to use these plenary powers against the far right before dismantling them.

You think he's going to declare some stuff state secrets to block right-wing lawsuits? Or is it that he's going to declare some big companies immune so they can do something illegal to right-wingers? Or maybe you think he's going to secretly kidnap Rush Limbaugh and ship him off to Egypt for torturing.

In any case, I do not want Obama or anybody else to have these powers, regardless of what they do with them.
posted by Kirth Gerson at 6:02 AM on March 3, 2009 [2 favorites]

Something we desperately need to do is redefine the definition of the word 'war' when used by presidents and their cohorts.
The 'war' on terror?
The 'war' on drugs?
The 'war' on porn?

I think a war should at least have a valid street address. Or a zip code. Or something.
posted by notreally at 6:12 AM on March 3, 2009 [1 favorite]

How is this okay?

I didn't say it was okay. I'm quite concerned, too, and I'm hoping that somehow it has more to do with institutional inertia than anything (though I doubt it). Because even if the rest of what we get out of the Obama administration is legit and progressive, this one claim would still be a sore point (and by sore point, I mean gaping chest wound kind of sore). The point I was trying to make was that this doesn't take away from the memo release or indicate Obama's approach to every constitutional problem Bush created.

If, after the Obama administration, the only unconstitutional Bush administration policy we have to deal with is expanded state secrets powers, we'll have come pretty far, all things considered. I don't mean this as Obama apologia, I'm just thankful for anything we can get out of a less than ideal situation.
posted by effwerd at 7:09 AM on March 3, 2009 [1 favorite]

Just to provide a little context: Here's Obama's executive order on presumptive disclosure of government documents under the Freedom of Information Act, and Obama's executive order on review of claims of executive privilege for presidential records.

I'm still hopeful that these cases in which the new administration appears to be siding with the old administration on state secrets will not ultimately be left to stand as is, but that these positions are merely consistent with the new administration's stated intent to review the Bush state secrets claims as a whole for appropriateness, possibly with an eye toward crafting a future policy that creates a more clearly defined review process involving the judicial branch.

That approach would be consistent with the administration's repeated theme of looking forward instead of looking back (and in one statement I recall, when Eric Holder was pressed about these positions on secrecy, he made a very deliberate point of the fact that just because the administration is asserting these rights for the time being doesn't mean it gives up the prerogative to reverse those positions in the near future).

Like it or not, the state secrets privileges as used (and likely abused) under the Bush administration is completely consistent with many decades of judicial precedent. The Supreme Court weighed in on the executive branch's state secrets privileges long, long ago and established as a matter of unambiguous legal precedent that the executive branch has the exclusive power to assert those privileges.

Even in the case that established the precedent, it eventually became clear that states secret privileges weren't really being invoked in the interest of national security, but merely to cover up a politically embarrassing incident. But still, the courts have ruled consistently in favor of state secrets privileges ever since. And that's who makes and interprets the laws: The congress and the courts. Since the attorney general's job is not to make law, but only to apply it, on what legal basis could the attorney general take a different position on previous assertions of state secrets privileges?
posted by saulgoodman at 7:45 AM on March 3, 2009

If, after the Obama administration, the only unconstitutional Bush administration policy we have to deal with is expanded state secrets powers, we'll have come pretty far, all things considered.

I'd like to know in just what way the state secrets powers have allegedly been expanded under Bush. There are many powers the administration clearly expanded, but unfortunately, state secrets powers as a matter of legal precedent have always been ridiculously broad.

Here's a small excerpt from the link above about the 1953 Supreme Court ruling that effectively established the state secrets privilege:

"The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny."
posted by saulgoodman at 7:50 AM on March 3, 2009

The states secrets privilege as asserted by Obama/Bush is not consistent with historical precedent. Before Bush's radical reinterpretation of the privilege, it was used to withhold specific pieces of classified evidence from being presented at trial; now it is used to prevent entire trials from proceeding and to prevent publicly available documents from being considered in trials. It is certainly an exclusive privilege of the executive branch; but what that privilege entails has been significantly altered in the last 8 years.

Minor difference.
posted by mek at 7:58 AM on March 3, 2009

"Americans deserve a government that operates with transparency and openness"

like Scotch Tape and Squash court.
hands stavs a un-thawed cucumber from last fall
posted by clavdivs at 8:04 AM on March 3, 2009

...then again there are no "gaus" on my block and only like what 1 and 30 americans are in the legal system...
(comeonfolkslookathistoryFDRdid'worse'things)
posted by clavdivs at 8:07 AM on March 3, 2009

"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... What we know now is likely the least of it."

The states secrets privilege as asserted by Obama/Bush is not consistent with historical precedent... [N]ow it is used to prevent entire trials from proceeding and to prevent publicly available documents from being considered in trials.

No, there's precedent for that, too.
posted by saulgoodman at 8:13 AM on March 3, 2009

...then again there are no "gaus" on my block and only like what 1 and 30 americans are in the legal system...

what
posted by Kirth Gerson at 8:17 AM on March 3, 2009

yes?
posted by clavdivs at 8:30 AM on March 3, 2009

No, there's precedent for that, too.

Ah. Okay. I had the same impression mek did. Thanks for clearing that up.
posted by effwerd at 8:40 AM on March 3, 2009

yes?

No?

Was that in the wrong thread? What is a "gau"?
posted by Kirth Gerson at 8:43 AM on March 3, 2009 [1 favorite]

the "gau" system as used by the nazis. (the block by block informant system)

and I recall that about 1 in 32 americans are in the legal system concerning prison or parole/probation but i concede those stats are old (2002) upon some looking about
posted by clavdivs at 8:51 AM on March 3, 2009

"The Blockleiter shall continuously remind the Party members of their particular duties towards the people and the State *** The Blockleiter keeps a list (card file) about the households *** In principle, the Blockleiter will settle his official business verbally and he will receive messages verbally and pass them on in the same way. Correspondence will only be used in cases of absolute necessity *** The Blockleiter conducts National Socialist propaganda from mouth to mouth. He will eventually awaken the understanding of the eternally dissatisfied as regards the frequently misunderstood or wrongly interpreted measures and laws of the National Socialist Government *** It is not necessary to him to fall in with complaints and gripes about possibly obvious shortcomings of any kind in order to demonstrate *** solidarity *** A condition to gain the confidence of all people is to maintain absolute secrecy in all matters."

-from some nazi manual
posted by clavdivs at 9:17 AM on March 3, 2009

Someone refresh my memory: when did the United States Congress declare war during Bush's term? I can't recall. Or do the magic presidential powers apply to 'wars' like the war on poverty or the war on drugs? Can the president suspend the first and fourth amendments when he declares war on any abstract concept? At we pretty much permanently at war now?
posted by mullingitover at 9:29 AM on March 3, 2009

mullingitover: when did the United States Congress declare war during Bush's term?

They kind of snuck it in under the radar, in the form of this joint resolution on Authorization for Use of Military Force (Public Law 107-40), which in effect preemptively declared war on any country in the world that the President personally suspected of harboring or supporting terrorists. Basically, it declares an open-ended war that could extend to any other country in the world, at the President's sole discretion.

It's an interesting read.

It's couched in such vague terms that, in effect, it nullified the war powers act completely and puts every other nation on earth on notice as possible targets for US military action in the War on Terror. Here's a little sample:

(a) In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

Nice work, congress!
posted by saulgoodman at 9:57 AM on March 3, 2009 [3 favorites]

Presidential privilege order of deployment:

1. Declare war on somebody or something. (Nouns make good enemies - be creative!) You can do this without having to get Congress to actually declare war, but they always pretend that they did anyway.
2. Use state of war to justify ignoring or disabling Constitutional restraints on your power.
3. Do what ever you like (Profit!)
4. If any of #3 surfaces in court, play Stay Out of Jail State Secrets card.
posted by Kirth Gerson at 10:01 AM on March 3, 2009

"This was the near-dictatorship favored by some neoconservatives in the war on terror: the abolition of the constitution indefinitely in order to protect the constitution."
posted by homunculus at 10:36 AM on March 3, 2009

I feel like I'm emerging from a deep dark hole after years of abuse; every one of these sorts of actions leaves me speechless with gratitude and amazement. It's embarassing.

You're obviously not paying much attention.

I think it's more like Stockholm Syndrome.
posted by small_ruminant at 10:55 AM on March 3, 2009

It's the song, not the singer.

They do requests you know.
posted by fullerine at 11:05 AM on March 3, 2009

Not mine, they don't.
posted by Kirth Gerson at 11:22 AM on March 3, 2009

The CIA destroyed 92 tapes of interrogations.

I wonder if there is some DMCA provision that could get them? It seems like copyright law is the only thing being enforced in America ltd. these days.
posted by srboisvert at 12:12 PM on March 3, 2009

The 'war' on terror?
The 'war' on drugs?
The 'war' on porn?

What now? War on porn? When did this happen?

Damn it, I'm off to study our enemy. Closely.

For the sake of freedom.
posted by quin at 3:09 PM on March 3, 2009 [2 favorites]

The president could literally drown a thousand puppies...

I'm talking about drawing a line in the sand, Dude. Across this line, you DO NOT...

999 puppies. Anything more is over the line.
posted by Devils Rancher at 6:33 PM on March 3, 2009

Justice Dept. May Release More Terrorism Memos
posted by homunculus at 6:44 PM on March 3, 2009

Turley On Countdown: Released OLC Memos, “The Very Definition Of Tyranny”
posted by homunculus at 3:07 PM on March 4, 2009

Presidential privilege order of deployment:

1. Declare war on somebody or something. (Nouns make good enemies - be creative!) You can do this without having to get Congress to actually declare war, but they always pretend that they did anyway.
2. Use state of war to justify ignoring or disabling Constitutional restraints on your power.
3. Do what ever you like (Profit!)
4. If any of #3 surfaces in court, play Stay Out of Jail State Secrets card.

what?
posted by clavdivs at 7:00 AM on March 6, 2009

Yes?
posted by Kirth Gerson at 8:16 AM on March 6, 2009

what is

play Stay Out of Jail State Secrets card.
posted by clavdivs at 9:45 AM on March 6, 2009

It's the DoJ saying "Your court cannot even argue about whether the executive branch did something illegal, because all aspects of the thing that was done are State Secrets, even aspects that are in the public domain."
posted by Kirth Gerson at 10:15 AM on March 6, 2009

i see. but many 'Illegal' acts done by the executive branch have been ruled (later on) to be unconstitional. One may get a "pass" now but later on...there is a good book about DoJ abuses... ill look it up.
posted by clavdivs at 10:20 AM on March 6, 2009

Be sure to look up whether the executive branch invoked state secrets while you're at it.
posted by Kirth Gerson at 10:22 AM on March 6, 2009

'Above the Law' by David Burnham. (DoJ)

Be sure to look up whether the executive branch invoked state secrets while you're at it.

ummm, an american history text...anything SPU-sific?
posted by clavdivs at 10:41 AM on March 6, 2009

what
posted by Kirth Gerson at 1:01 PM on March 6, 2009

Be sure to look up whether the executive branch invoked state secrets while you're at it.

try picking up a book
posted by clavdivs at 1:41 PM on March 6, 2009

Last Chance to Get the Bushies
posted by homunculus at 3:50 PM on March 9, 2009

John Yoo is sorry for nothing
posted by homunculus at 2:04 PM on March 11, 2009

Investigative reporter Seymour Hersh describes 'executive assassination ring'
posted by homunculus at 9:49 AM on March 12, 2009

Cheney’s Assassination Squads and Iran-Contra and Findings
posted by homunculus at 2:41 PM on March 23, 2009

Torture Memo Author John Yoo Blames Ruined Reputation on "Hippies, Protesters and Left-wing Activists"
posted by Kirth Gerson at 3:31 PM on March 23, 2009

That's the kind of power hippies and peace protesters have.
posted by Artw at 3:33 PM on March 23, 2009

The Woman Who Could Nail Bush: Forget nanny issues and unpaid taxes. The GOP is threatening an ugly fight over an Obama Justice Department appointee who wants to disclose more Bush-era torture memos.
posted by homunculus at 4:02 PM on March 27, 2009