Secret legal reasoning

I don’t usually agree with Rand Paul, but I do here:

US Senator Rand Paul said in a letter to Senate leadership that he will block the confirmation of David Barron to a seat on the US Court of Appeals for the First Circuit until the White House releases controversial memos Barron drafted that justified the US military’s unchecked killing of American citizens overseas.

“The constitutionality of this policy has been the subject of intense debate in our country since its implementation,” Paul, a Republican candidate for president in 2016, said in a letter to US Senator Harry Reid, the Democratic majority leader.

“The disclosure of this document will not only clarify that debate, [but] it will also allow the Senate to gain critical insight into David Barron’s judicial philosophy.”

Barron would not comment when reached by telephone Monday. The White House did not respond to a request for comment.

Barron was acting assistant attorney general for the Office of Legal Counsel at the US Department of Justice from 2009 to 2010 when he justified the killing of American citizens, the legal basis for the targeted killing of Anwar al-Awlaki, an American who allegedly recruited for Al Qaeda in Yemen.

If Barron was the one who wrote the memo that allows the murder of US citizens then, at the least, we should be able to see those memos. And yes, I mean murder–there was no court case and no real oversight, this was state murder.

Judges notice corporations treated lightly

Some judges have been complaining about settlements between the government and banks. Here’s one of the cases:

The Barclays settlement, which Judge Sullivan approved last week, involved charges that the British bank helped customers in Iran, Cuba and other sanctioned nations move more than $500 million into the United States, breaking federal law — and undermining national policy — for more than a decade. The bank distributed instructions to employees for circumventing internal controls, for example by obscuring the source of the transfers.

Moreover, employees knew the transfers were illegal.

The cover sheets “must not mention” the offending entity, which could cause the funds to be seized, one employee wrote in an e-mail quoted by prosecutors. “A good example is Cuba, which the U.S. says we shouldn’t do business with but we do.”

The Justice Department agreed not to pursue criminal charges against the bank. In exchange, Barclays admitted to wrongdoing, forfeited $298 million and agreed to improve employee training.

It seems like a lot of money, except:

Profit increased to £2.4 billion, or $3.8 billion, in the first six months of this year from £1.9 billion in the same period last year, the bank said, beating some analyst expectations. Provisions for bad loans and other credit at the entire company fell 32 percent to £3 billion.

The judge doesn’t have much power in settlement cases and so approved the deal even though he wondered at it:

In the Barclays case, Judge Sullivan questioned whether the bank was being penalized if it paid back only the money involved. He said he wanted information about the penalties at another hearing scheduled for Wednesday.

Frederick Reynolds, a lawyer for the Justice Department, defended the agreement and said the amount of money Barclays would pay was “beyond what they earned.”

Wow, somehow I don’t think that’s the standard applied to actual people. If I stole $100 from a store, would I be let go with a fine of $150? Somehow I think not.

Bush Justice Department memos released

The memos written by the the Bush administration’s Office of Legal Council have been released by President Obama. This is a good thing, but Obama is still holding to this:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Let’s see, suppose a few years ago I went into a building and took some stuff acting on the guidance of a neighbor who said it was ok. Some people might think I should be charged with robbery, but not Obama–with the current economic problems, now is not the time to revisit old crimes that could cause dissension. Really, does that make sense? If a crime was committed, someone should pay–I agree that the people following the advice of the OLC probably shouldn’t, but someone should. Also, remember that the interrogations started before these memos came out.

I also like the unwitting irony with this statement:

Dennis C. Blair, the director of national intelligence, cited his experience after taking part in the unpopular Vietnam War. “We in the intelligence community should not be subjected to similar pain,” he said.

If you take away the first sentence it would sound like he was saying that people in the intelligence community shouldn’t be tortured.

And, of course, people in the Bush administration are defending the practices:

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

You see they hope we have forgotten that the intelligence community had all the information needed to have an idea something like the 9/11 attacks were possible. The Patriot act and these ‘enhanced’ interrogation techniques were not needed. And then they follow it up with the usual ‘they do it too’  and ‘it wasn’t that bad’ childen’s arguments:

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

Of course, they ignore that the knowledge that the US tortures helped al-Qaeda get followers is ignored. And they ignore that people were tortured to death by the US (they pretend that allowing these rules for the CIA had nothing to do with what happened at Abu Ghraib, but the rules inevitably flowed down the chain–it was policy).

Of course, they can’t resist attacking those of us that wanted the disclosure:

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001.

You know what Mukasey and Hayden can jump off a cliff. They’re the ones who are saying the US should act like the terrorists. Good riddance to them.

Update: I’m sure you won’t be surprised to learn that the writers of the memo lied about conclusions of a sleep study so they could say it was ok to use extended sleep deprivation.

You also won’t be surprised to learn that the Bush administration decided to turn to torture even though interrogation was working and:

A footnote to another of the memos described a rift between line officers questioning Abu Zubaydah at a secret C.I.A. prison in Thailand and their bosses at headquarters, and asserted that the brutal treatment may have been “unnecessary.”

Quoting a 2004 report on the interrogation program by the C.I.A. inspector general, the footnote says that “although the on-scene interrogation team judged Zubaydah to be compliant, elements within C.I.A. headquarters still believed he was withholding information.”

Typical, the bosses think they know more than the people actually doing the job. Of course the CIA types weren’t exactly great:

His interrogation, according to multiple accounts, began in Pakistan and continued at the secret C.I.A. site in Thailand, with a traditional, rapport-building approach led by two F.B.I. agents, who even helped care for him as his gunshot wounds healed.

Abu Zubaydah gave up perhaps his single most valuable piece of information early, naming Khalid Shaikh Mohammed, whom he knew as Mukhtar, as the main organizer of the 9/11 plot.

A C.I.A. interrogation team that arrived a week or two later, which included former military psychologists, did not change the approach to questioning, but began to keep him awake night and day with blasting rock music, have his clothes removed and keep his cell cold.

But I guess the higher ups just wanted to punish him more.

More Bush Mismanagement Found

 The Minerals Management Service (part of the Interior Department) seems to have a problem:

The reports portray a dysfunctional organization that has been riddled with conflicts of interest, unprofessional behavior and a free-for-all atmosphere for much of the Bush administration’s watch.

…

The investigations are the latest installment in a series of scathing probes of the troubled program’s management and competence in recent years. While previous reports have focused on problems the agency has had in collecting millions of dollars owed to the Treasury, the new set of reports raises questions about the integrity and behavior of the agency’s officials.

The story seems to have it all:

The report accuses Mr. Smith of improperly accepting gifts from the oil and gas industry, of engaging in sex with two subordinates, and of using cocaine that he purchased from his secretary or her boyfriend several times a year between 2002 and 2005. He sometimes asked for the drugs and received them in his office during work hours, the report alleges.

…

On one occasion in 2002, the report said, two of the officials who marketed taxpayers’ oil got so drunk at a daytime golfing event sponsored by Shell that they could not drive to their hotels and were put up in Shell-provided lodging.

The same two women also “engaged in brief sexual relationships with industry contacts,” the reports’ cover memo said, adding that “sexual relationships with prohibited sources cannot, by definition, be arms-length.”

Just your typical government officials in the Bush administration.

Exclusive Means?

Here’s more evidence of the mindset of the Bush administration (via TPM):

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.”

…

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that “[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.”

This is how it works in this administration: they want to do something that is specifically against the law, so they pretend it doesn’t apply to them by writing an obviously stupid justification. At least they could have tried to make it sound good.

Mukasey Says No To Grand Jury, On To Civil Lawsuit

It seems that Mukasey is holding to his belief that a person can do anything if someone in the Justice Department tells them it’s ok:

In his letter, received by the House early Friday evening, Mukasey pointed out that not only was Miers directed not to testify, she also was immune from congressional subpoenas and was right to not show up to the hearing to which she had been summoned.

“The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” Mukasey wrote, quoting Justice policy.

Not suprisingly, the reasoning behind his decision comes from a Justice Department legal opinion in 1984 under Reagan. In response, Speaker Pelosi has directed the Judiciary committee to file a civil enforcement action (via TPM). The legal opinion of 1984 has not been tested in courts, it looks like it might be now.