Dozens of secret Bush surveillance, executive power memos found; Could be made public

[MiaCulpa]

Source: Raw Story - John Byrne

Details about more than three dozen secret memoranda written by Bush Administration officials now sit atop a chart created by public interest reporting group. The memos track new details about dozens of secret Bush Administration legal positions on torture, detention and warrantless wiretapping.

Meanwhile, Obama's freshly-confirmed Attorney General Eric Holder told senators that he was open to declassifying White House legal memos if no support for their original classification could be found, signaling a likely showdown with former President George W. Bush over executive privilege.

"The Bush administration's controversial policies on detentions, interrogations and warrantless wiretapping were underpinned by legal memoranda," Pro Publica's Dan Nguyen and Christopher Weaver write. "While some of those memos have been released (primarily as a result of ACLU lawsuits), the former administration kept far more memos secret than has been previously understood. At least three dozen by our count."

Read more: http://rawstory.com/news/2008/Dozens_of_secret_Bush_terror_memos_0203.html

---

Full story at the link...

-diane

[Christa]

1. K & R nt

[Laura PourMeADrink]

2. Here's the list of Memos in Question...

http://rawstory.com/news/2008/Dozens_of_secret_Bush_terror_memos_0203.html

[jhrobbins]

20. I'm just wondering why the deputy asst AG would title his memo

Reauthorization of 'Warrantless Wiretapping'? That doesn't seem like something someone would do in a memo. I'm just sayin......

[choie]

33. okay, I'm confused...

the memo regarding the reauthorization of warrantless wiretapping is dated 1/02 - only four months after 9/11. When the hell did the initial authorization take place?

[robinlynne]

35. We know that the warrantless wiretapping started on Feb, 2001.

[jwirr]

24. Yoo is obviously the one saying it is okay. Can he be prosecuted? nt

[Buzz Clik]

38. Not likely. He was simply providing legal interpretation.

He was also providing legal protection to the administration.

The activities of Yoo have been known for many years, and his activities are precisely what protected Bush and Cheney from impeachment.

[JackRiddler]

42. No, he's the first one on the chopping block in a serious investigation.

Yoo's legal opinions served as the basis for clearing illegal actions by the executive. If your lawyer advises you that you may commit an illegal act because in his opinion it is actually legal, he makes himself liable to prosecution, you are still subject to prosecution for your crime, and both of you (and Yoo) may face an additional conspiracy charge.

The bitch is in demonstrating any one individual’s witting intent, although as a group they obviously set out to break the law and then did so.

See, Yoo can issue an opinion that Cheney's got a right to shoot you (not Yoo) in the face. Gonzalez (or Ashcroft) then officially certifies that Yoo issued the opinion as part of his official duties at OLC. (This may later entitle Yoo to government defense under a precedent known as Westfall). Cheney can face-shoot you, and everyone's in the clear. Except you. As the face-shot victim, when you sue for damages (like Padilla has sued Yoo), Yoo's hope is that all future executive branches must represent him in court, thanks to his Westfall certification. The Obama Justice Dept. has in fact so far provided representation for Yoo. Cheney theoretically will get representation also, when his turn comes, thanks to Yoo's finding. Is Gonzalez in the clear? I'm sure somebody in the round-robin of preemptive exoneration issued a memo that covered his ass, too.

Yay!

Remember that: Round-robin of preemptive exoneration.

In reality, the current government is not required to cover for Yoo. It can just declare his Westfall certification null and void, because it involved the witting commission of crimes - in fact, constitutional violations.

In reality, Yoo and Addington are the most vulnerable characters in this charade. Lawyers can't advise their clients that it's okay to break the law and then expect protection for this as a legal opinion.

Far harder to establish in court, although it's perfectly obvious, is that all this was part of a collusive activity -- a conspiracy -- to circumvent longstanding laws. It's all kabuki. Everyone involved knows, when Yoo issues his (at first classified) opinions, that it does not really get them around the many statutes of federal law, the Constitution and international treaties that ban torture, do not define a category of "enemy combatant," and prohibit permanent detention without habeas corpus. Yoo's just doing it to cover their asses, and they all know it.

[No Elephants]

43. What is a "Westfall

certification?"

For the legal minded: http://www.columbialawreview.org/articles/an-unintended-double-standard-of-liability-the-effect-of-the-westfall-act-on-the-alien-tort-claims-act

[JackRiddler]

44. Westfall v. Erwin led to the Westfall Act of 1988 and "Westfall certification"

I found a good discussion of the history in a case brief, here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=8th&navby=case&no=952633p

In 1988, Congress amended the Federal Tort Claims Act ("FTCA")

to reinforce federal employees' immunity from tort actions. These

amendments -- commonly known as the Westfall Act because they were

a response to Westfall v. Erwin, 484 U.S. 292, 300 (1988) --

provide that an action against the United States is the only remedy

for injuries caused by federal employees acting within the scope of

their employment. 28 U.S.C. SS 2679(d)(1).

Here is the SS 2679 statute:

http://www.law.cornell.edu/uscode/28/usc_sec_28_00002679----000-.html

The Westfall Act also

establishes a process frequently called Westfall certification.

After a federal employee is sued in a state court, the Attorney

General reviews the case to determine if the employee was acting

within the scope of his or her employment when he or she engaged in

the allegedly harmful conduct. 28 U.S.C. SS 2679(d)(2). The

Attorney General may then file a Certification of Scope of

Employment, a document certifying that the employee was acting

within the scope of his or her employment, and may remove the case

to federal court. Id. The Attorney General then notifies the

federal court that the United States should be substituted as

party-defendant for the federal employee. Id.



Although Westfall certification acts as prima facie evidence

that the defendants were acting within the scope of their

employment, Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.

1991), it does not conclusively establish that the United States

should be substituted as party-defendant. Gutierrez de Martinez v.

Lamagno, 115 S. Ct. 2227, 2236 (1995); Brown, 949 F.2d at 1011-12.

If the plaintiff challenges the certification, the district court

must independently review the case and determine whether the

defendant was in fact acting within the scope of his or her

employment. Gutierrez de Martinez, 115 S. Ct. at 2236-37

(plurality opinion). If the court finds that the employee was

acting outside the scope of his or her employment, the court must

refuse to substitute the United States. Id. If the court agrees

with the certification, then the case proceeds against the United

States under the FTCA. 28 U.S.C. SS 2679(d)(4).

For a DU debate on how Westfall relates (or doesn't) to Yoo, see here starting at Post 38:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x4927701#4928703

[JackRiddler]

46. kick

[happygoluckytoyou]

31. what about the Dubya memo "I'm a dumbfuck whose legacy is as a clown!"

[Whoa_Nelly]

3. Showdown with Bush

"Hold on there, Holder! Jest wait 'til Ah gits mah boots on!" sez George.

[acmavm]

4. I'll believe it when I read the memos.

[montanto]

30. cynical?

me too.

I'll believe it when I see it. I've grown tired of fantastic justice.

[barbtries]

5. this could be big

i hope they chase the motherfuckers to the ends of the earth. justice!

[proud progressive]

18. just remember this - those doing the chasing are also motherfuckers, thoughbeit, not as bad

MOST pols are mf's

[barbtries]

22. yeah

and unfortunately anyone who wants to get anywhere in politics is pretty much bound to become a politician. kind of a vicious circle thingie.

[EFerrari]

23. But maybe too many of us know about this for them to successfuly disappear it.

I hope so.

[Iggo]

28. "...thoughbeit..."

Is that really a word? If so, it's my new favorite word.

[defendandprotect]

29. Right . . . I'm thinking if you're going to release them you just do it ---

when you talk about doing it, it looks more like you're inviting someone to stop you!!!

[TheEuclideanOne]

36. Just like every bad action movie

where the killer is about to snuff out the life of the hero. Just when he has him at gunpoint, he stops to make a small speech about how he has the other guy at his mercy. Instead of killing him, he takes some time to brag and rub it in. But always, before he gets to the end of his speech, the good guy gets away. If he just killed the guy, the mission would be accomplished.

[Soylent Brice]

6. let's see the dominoes fall!!!

[FailureToCommunicate]

7. Judges at The Hague will be VEERRRY interested in the international related

memos. Hope they get them soon. This is not just up to the Democrats to investigate...

[LynneSin]

10. Better hope that Bush doesn't head to his new ranch in Paraguay

http://www.dailykos.com/story/2008/5/2/13421/43718/1009/507485

[aquart]

21. Funny. That's exactly what I want.

[depakid]

40. Heh. might not be too wise for some of these folks to leave the country

[L. Coyote]

8. Mr. Holder. Tear down this wall!!

There's a possibility of Justice, a possibility, I say, just a possibility still ....

[bluesmail]

9. Yesterday when President Obama announced he was keeping rendition

I pictured in my mind Dick and George being tortured and asking "What, you don't think this is torture?"

[MADem]

11. That new rule where "everyone has to agree" is what will cause the showdown.

The Bushes fixed that up rather smartly....

[Botany]

12. Wanna bet "they" were spying on Kerry in 2004?

Let the trials begin.

The NSA did the spying and the DoJ was the muscle.

[kmac3]

13. The Proof is in the pudding . . . .

Okay, we've got the goods to bring those guilty to trial . . . let's be certain they do the job they were elected to do. To go forward and reestablish our standing in the world we must correct the wrongs of the past administratin. To not act on the injustices is being complicit!

[cliffordu]

14. BooYA!!!! K&R

I say we send the whole fucking bunch to the Hague.

Maybe they can scratch their names next to the signatures of the other NAZI fucks that have languished there.

[Javaman]

15. could. nt

[peacetalksforall]

16. If you go to rawstory to see the list and it only has a subject line, cut

and paste to a word processing document and it opens up to add detail. Perhaps there is an easier way.

In other words, don't settle for the subject line only, the news of eight years opens up in cohesive fashion.

P.S. Reading this and seeing Woo's name so much and reading the stuff above on Paraguay makes me ask myself again - is Woo Moon's man in the Bush Adm to help with the World Order?

I rename the entire DOJ plan the RIGHT REMOVAL ACT AND TAKEOVER.

Right to live.
Right to keep what you own.
Right to every kind of privacy.
Right to be a citizen as was designed.
Right to trial and jury in front of an just judge..
Right to government by citizens.
Right to transparency.

Where does it go from here? I think we have to find out why our Dem leaders have and to some extent are still speaking and voting as Republicans. I scoffed at blackmail. I'm staring to wonder.

WHO HAS THE 'POINDEXTER' DATABASE and its contents and is it clicking and storing away. Who does the work of robbing and storing - which department do they work for? My guess is the Department of Defense with the help of foreign assistance and I'm not talking menial jobs, I'm talking high level. I'm also talking about the data being taken outside the U.S.

There is a practical angle to the implications of the legal angle.

[peacetalksforall]

PSS re Paraguay. Since the Wonkette article from early

2008 (linked above), there has been a regime change in Paraguay. The available for purchase President has been replaced by (what seems to be) a not for sale President.

[peacetalksforall]

17. PSS re Paraguay. Since the Wonkette article from early

2008 (linked above), there has been a regime change in Paraguay. The available for purchase President has been replaced by (what seems to be) a not for sale President.

[Doctor_J]

19. Woo-hoo! Get your torches & pitchforks ready

America is about to wake up! Hope Smirk's new community is well-gated.

[serrano2008]

25. re: Fourth Amendment doesn't apply to military operations in U.S.

This seems really vague and basically gives them the right to search anyone at any time as long as there are "military operations" going on somewhere in the US.

Also reminds me of these specifically:

12/17/08 Headline US military mobilizes troops for inauguration

10/8/08 Headline Thousands of Troops Are Deployed on U.S. Streets Ready to Carry Out "Crowd Control"

[sakabatou]

26. Make 'em public!

We want to know what that fucker did.

[Joey Liberal]

27. Let the trials begin nt

[valerief]

32. Big K&R!

:kick:

[Rosa Luxemburg]

34. and 9/11?

I would love to hear those!

[JackRiddler]

45. Never forget...

This is the test, though. This stuff has to come out, much more will then follow.

[mdmc]

37. sig.

[depakid]

39. Looks to me like some state bar disciplinary committees have a bit of work to do

Starting with Pennsylvania and John Yoo....

[CRK7376]

41. Bring them on....

Open them for the world to see I say....