The End of the Yoo Doctrine (Balkinization)

[chill_wind]

Tuesday, March 03, 2009

The End of the Yoo Doctrine

JB

The Office of Legal Counsel has just released a series of previously secret opinions from the Bush Administration. Perhaps equally important, it has issued two remarkable opinions, one from October 6th, 2008 and one from January 15th, 2009 which essentially disown the extreme theories of Presidential power offered during the crucial period between 2001 and 2003 when John Yoo was at the OLC.

These two memos were issued in the last days of the Bush Administration and they bear the signature of Steven G. Bradbury, the Acting OLC head from 2005 to 2009 and who wrote memos justifying many of the Bush Administration's detention and interrogation practices after the original torture memos were revealed and disowned. These two memos from October 2008 and January 2009 do not reverse the OLC's views about the legality of specific interrogation, detention and surveillance practices. What they do is to announce that the theories used to justify these practices are no longer taken seriously at the OLC and that executive branch officials should not rely on them.

The October 6, 2008 memo disowns Yoo's secret October 25, 2001 memo which stated that if the government used the military to fight terrorism inside the United States, (1) the Fourth Amendment's ban on unreasonable searches and seizures would not apply to limit domestic military operations, (2) that the First Amendment's guarantees of speech and press might have to be subordinated to military necessity, (3) that the Posse Comitatus Act, which makes it illegal to use of the military for domestic law enforcement purposes, would not apply.

The January 15th memo is even more striking. It disowns statements made in a number of OLC memos (mostly authored by Yoo) made in the wake of the 9/11 attacks. It attempts to excuse these statements on the grounds that the OLC memos were issued under extraordinary circumstances and it notes that, in contrast to usual OLC practice, these memos offer broad hypothetical statements rather than responding to concrete situations. The January 15, 2009 memo insists that the OLC has not relied on these disowned statements of law since 2003.

( snipped)

(...) No one should confuse these memos with a reversal of Bush Administration policy-- instead, they are an attempt to disown a particular theory of unlimited Presidential power that was an embarrassment to the professional standards of the OLC. In this sense what is remarkable about these two memos is not that they change any concrete practices but that the OLC felt the need to reverse itself years later and to disavow a particular type of reasoning-- reasoning which sought, in secret, to justify a theory of Presidential dictatorship.


http://balkin.blogspot.com/2009/03/end-of-yoo-doctrine.html

(bold mine)

In other words, it just took them a very long time to begin the real fearing--the ice-cold fear--for their necks. October of 2008- Jam 15th 2009. VERY long. That's how I read this.

[chill_wind]

1. .

[sofa king]

2. Almost like they were surprised they had to leave, isn't it?

[LynnTheDem]

3. Almost exactly like that.

Isn't it.