Michael Isikoff Discusses Release of Former Bush Administration Memos That Gave Executive Branch Extraordinary Powers

Michael Isikoff, writing for Newsweek has reported that: In the aftermath of the 9/11 attacks, the Justice Department secretly gave the green light for the U.S. military to attack apartment buildings and office complexes inside the United States, deploy high-tech surveillance against U.S. citizens and potentially suspend First Amendment freedom-of-the-press rights in order to combat the terror threat, according to a memo released Monday." (http://www.usdoj.gov/opa/documents/memomilitaryforcecombatus10232001.pdfIs/memomilitaryforcecombatus10232001.pdf.

Although many of the Justice Department granted methods of conduct were never carried out according to Isikoff, they did represent activities that violated the First Amendment.

Isikoff reports: "But the memo from the Justice Department's Office of Legal Counsel—along with others made public for the first time Monday—illustrates with new details the extraordinary post-9/11 powers asserted by Bush administration lawyers. Those assertions ultimately led to such controversial policies as allowing the waterboarding of terror suspects and permitting warrantless wiretapping of U.S. citizens—steps that remain the subject of ongoing investigations by Congress and the Justice Department. The memo was co-written by John Yoo, at the time a deputy attorney general in the Office of Legal Counsel. Yoo, now a professor at the Boalt Hall School of Law at the University of California, Berkeley, has emerged as one of the central figures in those ongoing investigations."

Isikoff reveals his opinion that "the most surprising assertion, the Oct. 23, 2001, memo suggested the president could even suspend press freedoms if he concluded it was necessary to wage the war on terror."

Isikoff bases his belief from his reading of "Authority for Use of Military Force to Combat Terrorist Activity Within the United States," in which John Yoo wrote: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

It is Isikoff's opinion that: "This claim was viewed as so extreme that it was essentially (and secretly) revoked—but not until October of last year, seven years after the memo was written and with barely three and a half months left in the Bush administration."

Isikoff reports: "At that time, Steven Bradbury, who headed the Office of Legal Counsel throughout Bush's second term, concluded that Yoo's statements about overriding First Amendment freedoms were "unnecessary" and "overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario," according to a memo from Bradbury also made public Monday."

Isikoff consulted the opinion of: "Kate Martin, the director for the Center for National Security Studies, a Washington think tank, said the newly disclosed memo by Yoo and Robert Delahunty, another OLC lawyer, was part of a broader legal reasoning that gave President Bush essentially unfettered powers in the war on terrorism. "In October 2001, they were trying to construct a legal regime that would basically have allowed for the imposition of martial law," said Martin. (Yoo, also a visiting scholar at the conservative American Enterprise Institute, did not respond to a request for comment. Gonzales's lawyer, George Terwilliger, said he had not yet had a chance to review the newly released memo and also declined to comment.)"

Mr. Bradbury, according to Michael Isikoff "rescinded three other legal memos" January 15, 2009. "written during the president's first term that claimed broad powers to unilaterally suspend treaties, bypass restrictions on domestic surveillance and take other actions to combat terrorism without the approval of Congress. Bradbury said in a separate legal memo that the claims made in these earlier memos were based on unsound legal reasoning and should not be viewed as "authoritative." But he offered no explanation for why he waited until the waning days of Bush's presidency to withdraw them."

During the course of Michael Isikoff's investigation of the newly released memos, he believed that: "The most controversial, and best known, of Yoo's legal opinions was his Aug. 1, 2002, memo that effectively approved the president's right to disregard a federal law banning torture in ordering the interrogation of terror suspects. An accompanying (and still unreleased) memo from the same day approved the CIA's authority to use "waterboarding" (or simulated drowning) against terror suspects."

"In a related matter," which Isikoff mentions, "the CIA acknowledged in a legal filing Monday that it has destroyed 92 interrogation tapes of two suspects who were subjected to waterboarding. While it was previously known that the agency had destroyed some tapes, the number of destroyed tapes was far more "systemic" than had previously been known, according to Amrit Singh, a lawyer with the American Civil Liberties Union, which has been seeking records about the destroyed evidence under a Freedom of Information Act lawsuit."

Michael Isikoff's investigation led him to: "A U.S. government official familiar with the matter said all of the destructions took place in November 2005 and mostly involved the interrogations and detention of Abu Zubaydah, a "high-value" detainee who was captured in March 2002 and remains today at the U.S. detention facility at Guantánamo Bay. A small number of the destroyed tapes also involved the interrogation and detention of another suspect, Abd al-Rahim al-Nashiri, an alleged architect of the October 2000 bombing of the USS Cole. Justice Department special counsel John Durham, who is investigating the destruction of the tapes, previously said he planned to finish his interviews by the end of February, but has given no indication of whether he plans to charge anybody involved with a crime."

Isikoff explains that: "The newly disclosed Oct. 23, 2001, memo was in response to a request from Gonzales, at the time President Bush's top lawyer, and Haynes, who was chief counsel at the Pentagon, to determine if there were any restrictions on the use of the U.S. military inside the country in targeting terror suspects. The Yoo memo essentially concluded there were none. The country, he argued, was in a "state of armed conflict." The scale of violence, he argued, was unprecedented and "legal and constitutional rules" governing law enforcement—such as the Fourth Amendment prohibition on "unreasonable" searches and seizures—did not apply."

Michael Isikoff concludes by explaining that: "At one point, the memo says, the U.S. military could be used for "targeting and destroying" a hijacked airline or "attacking civilian targets, such as apartment buildings, offices or ships where suspected terrorists were thought to be." At another point, the memo advices: "Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses or searching for suspects."

Holder's Clear View: Waterboarding is Torture and Illegal

The New York Times Scott Shane's news analysis of attorney general-designate Eric H. Holder's congressional testimony that waterboarding constitutes torture and is illegal according to U.S. and international law and treaties, may have moved the incoming Obama administration ever so closer to becoming involved in an investigation of alleged U.S. involvement with waterboarding. With the use of waterboarding by the U.S. having already gained the status of public knowledge; numerous media and legal officials from around the world have been anxiously awaiting any form of information that might signal what Obama intends to do about the illegal acts. Concerned parties in the U.S. and abroad had to endure years of obfuscation by the Bush administration concerning waterboarding; had to listen to: "Just 14 months ago, (when) at his confirmation hearing, Attorney General Michael B. Mukasey frustrated and angered some senators by refusing to state that waterboarding, the near-drowning technique used on three prisoners by the Central Intelligence Agency, is in fact torture." Those many interested parties may have received; "This week, at his confirmation hearing, Eric H. Holder Jr., the attorney general-designate;"... long awaited confirmation that waterboarding is defined by Holder as torture, who "did not hesitate to express a clear view. He noted that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge. Holder even added the caveat that: “We prosecuted our own soldiers for using it in Vietnam,” Mr. Holder clearly said. “Waterboarding is torture.”" Mr. Shane reiterated the widely accepted belief that: "In the view of many historians and legal authorities, Mr. Holder was merely admitting the obvious. He was agreeing with the clear position of his boss-to-be, President-elect Barack Obama, and he was giving an answer that almost certainly was necessary to win confirmation." Mr. Shane explains that the consequences of Holder's definition opens a Pandora's box that will require legal action because: "... his statement, amounting to an admission that the United States may have committed war crimes, opens the door to an unpredictable train of legal and political consequences. It could potentially require a full-scale legal investigation, complicate prosecutions of individuals suspected of committing terrorism and mire the new administration in just the kind of backward look that Mr. Obama has said he would like to avoid." Mr. Shane adds background information that: "Mr. Holder’s statement came just two days after the Defense Department official in charge of military commissions at Guantánamo Bay, Cuba, said in an interview with The Washington Post that she had refused to permit a trial for one detainee there, Mohammed al-Qahtani, because she believed he had been tortured." Mr. Shane links these remarks to explain that: "Together the statements, from a current and an incoming legal official, cover both the Central Intelligence Agency, which has acknowledged waterboarding three captured operatives of Al Qaeda, and the military’s detention program." Mr. Shane then adds that: "Legal experts across the political spectrum said the statements would make it difficult for the incoming administration to avoid a criminal investigation of torture, even as most also say a successful prosecution might well be impossible." Mr. Shane's analysis points out that: "Two obvious obstacles stand in the way of a prosecution: legal opinions from the Justice Department that declared even the harshest interrogation methods to be legal, and a provision in the Military Commissions Act of 2006 that grants strong legal protections to government employees who relied on such legal advice in counterterrorism programs." In reaction to the news: "... Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said, “It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it.” Mr.Shane adds another opinion, that of: "Charles D. Stimson, who served as the Defense Department’s top official on detainee affairs from 2004 to 2007 and is now a senior legal fellow at the conservative Heritage Foundation, (who) said the statements “certainly will increase the pressure on Holder to mount some kind of investigation.”" Mr. Shane goes on to explain that: "In addition to domestic political pressures, the United States appears to have a legal obligation as a party to the international Convention against Torture to follow up on the torture statements. That treaty requires signatory states to conduct a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”" Mr. Shane reminds his readership that: "The Bush administration placed its interrogation operations offshore, at the American base in Cuba and at secret C.I.A. sites, and officials have sometimes argued that they were not on territory under American jurisdiction." But that assertion," Mr. Shane adds, "has been eroded by court decisions concerning the Guantánamo detention center, and it is unlikely that the Obama administration would use such a loophole to avoid the torture convention’s effect." With Bush's excuse that the torture facilities escaped U.S. jurisdiction because they did not occur on American soil now undermined by U.S. judicial proceedings, it becomes crystal clear that for the Obama administration: "There’s a moral, legal and practical obligation of the United States to follow this allegation in good faith wherever it leads,” said Juan E. Méndez, a veteran human rights lawyer who is president of the International Center for Transitional Justice in New York." Mr. Shane conjectures: "Where such an inquiry might lead is an unsettling question for departing Bush administration officials, who have long worried that aggressive policies could make them vulnerable to civil or criminal liability." And Mr. Shane asks us to consider that: "If rank-and-file interrogators are protected by the Justice Department’s assurance that their actions were legal, what about the lawyers who gave the assurances? What about the senior officials, including President Bush, who approved the use of waterboarding and other such tactics?" Mr. Shane presents his opinion of the legal conundrum that has forced Mr. Obama to tread carefully because: "Such questions are so legally daunting and politically complex that Mr. Obama has played down, while not ruling out, the possibility of a criminal investigation or a national commission to examine past policies. In an interview with ABC last Sunday, he said “my orientation’s going to be to move forward” rather than looking back." Mr. Shane remarks on the many legal obstacles put into place by the Bush administration that Mr. Obama must contend with by relating that: "In recent weeks, Mr. Bush, Vice President Cheney and other officials have strongly defended their counterterrorism methods and credited them with preventing attacks on the United States since 2001. Their implicit argument — that the Obama administration should not question policies that protected Americans — was made more explicit and personal by Michael V. Hayden, the departing C.I.A. director, in a session with reporters on Thursday." Make no mistake; the Bush administration, realizing it's precarious legal footing has initiated numerous tactical maneuvers to stop Obama's investigation in it's tracks. Bush has exhibited no compunction to freely use methods of self protection that come very close to allowing statements to be made that can be construed as threats such as Mr. Hayden's remark that was clearly intended for the incoming Obama administration: "“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I want to post all your e-mails, or, well, we’ve got this guy from the bureau who wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A. officer from taking risks on behalf of the new president’s policies." Having made his point to Obama, Hayden softened his rhetoric and added: "We have no right to ask this guy (the CIA operative) to bet his kid’s college education on who’s going to win the off-year election,” Mr. Hayden said, alluding to legal fees that such a C.I.A. officer might face." Let there be no doubt, Mr. Bush and the rest of his administration who played a role in allowing torture and waterboarding are aware of the severity of the legal issues that they created by their actions. Mr. Shane concludes by asking his readers to consider the following conversation initiated by Utah Republican Orrin G. Hatch and directed at Mr. Holder in which Senator Hatch asked, as paraphrased by Mr. Shane: "whether he (Mr. Holder) would pursue a criminal investigation of the interrogation programs." To which "Mr. Holder hedged his response, saying, “Senator, no one’s above the law, and we will follow the evidence, the facts, the law, and let that take us where it should.” Mr. Shane completed Mr. Holder's direct response to the senator from Utah: "quoting Mr. Obama, that “we don’t want to criminalize policy differences” and finally pleaded for time to study the matter." Mr. Holder concluded his remarks to Mr. Hatch in the form of an unbiased response that nevertheless signals the Obama administrations' interest in the matter by leaving the question open and indicating that an answer would be coming at a later date: "One of the things I think I’m going to have to do,” Mr. Holder said, “is to become more familiar with what happened that led to the implementation of these policies.” Becoming aware of all the facts and circumstances of torture and waterboarding and how they relate to the treaties and laws of the United States now appears to be clearly on Mr. Holder's to-do list once he is confirmed and becomes Attorney General of the United States. Let us hope that Mr. Holder takes the necessary time he needs to take the appropriate measures that leads to a complete and intensive investigation that results in legally determined convictions against members of the bush administration.

Paul Krugman Supports an Inquest of Possible Crimes Committed by the Bush Administration

Paul Krugman of the New York Times, steps away from his usual remarks regarding economic issues and voices his opinion that the incoming Obama Administration is duty bound to fully investigate the outgoing Bush Administration for suspected criminal activities over the past eight years. Krugman displays his deep feelings of unease that such an investigation might not take place when he remarks: "Last Sunday President-elect Barack Obama was asked whether he would seek an investigation of possible crimes by the Bush administration. “I don’t believe that anybody is above the law,” he responded, but “we need to look forward as opposed to looking backwards.” Krugman retorts: "I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power." Krugman seeks to add a sense of clarity in discussing his convictions: "Let’s be clear what we’re talking about here. It’s not just torture and illegal wiretapping, whose perpetrators claim, however implausibly, that they were patriots acting to defend the nation’s security. The fact is that the Bush administration’s abuses extended from environmental policy to voting rights. And most of the abuses involved using the power of government to reward political friends and punish political enemies." Krugman notes: "At the Justice Department, for example, political appointees illegally reserved nonpolitical positions for “right-thinking Americans” — their term, not mine — and there’s strong evidence that officials used their positions both to undermine the protection of minority voting rights and to persecute Democratic politicians." Krugman contends: "The hiring process at Justice echoed the hiring process during the occupation of Iraq — an occupation whose success was supposedly essential to national security — in which applicants were judged by their politics, their personal loyalty to President Bush and, according to some reports, by their views on Roe v. Wade, rather than by their ability to do the job." Krugman continues his remarks: "Speaking of Iraq, let’s also not forget that country’s failed reconstruction: the Bush administration handed billions of dollars in no-bid contracts to politically connected companies, companies that then failed to deliver. And why should they have bothered to do their jobs? Any government official who tried to enforce accountability on, say, Halliburton quickly found his or her career derailed." Adding to his case for the investigation of the Bush Administration, Krugman reminds his readers that: "There’s much, much more. By my count, at least six important government agencies experienced major scandals over the past eight years — in most cases, scandals that were never properly investigated. And then there was the biggest scandal of all: Does anyone seriously doubt that the Bush administration deliberately misled the nation into invading Iraq?" Krugman, having assembled his concise list of charges attempts to understand why an investigation of the Bush Administration only seems like a remote possibility. "One answer you hear is that pursuing the truth would be divisive, that it would exacerbate partisanship. But if partisanship is so terrible, shouldn’t there be some penalty for the Bush administration’s politicization of every aspect of government?" Continuing, Krugman gives another answer that is often used to promote inaction: "Alternatively, we’re told that we don’t have to dwell on past abuses, because we won’t repeat them. But no important figure in the Bush administration, or among that administration’s political allies, has expressed remorse for breaking the law. What makes anyone think that they or their political heirs won’t do it all over again, given the chance?" Krugman follows with a perceptive charge: "In fact, we’ve already seen this movie. During the Reagan years, the Iran-contra conspirators violated the Constitution in the name of national security. But the first President Bush pardoned the major malefactors, and when the White House finally changed hands the political and media establishment gave Bill Clinton the same advice it’s giving Mr. Obama: let sleeping scandals lie. Sure enough, the second Bush administration picked up right where the Iran-contra conspirators left off — which isn’t too surprising when you bear in mind that Mr. Bush actually hired some of those conspirators." Krugman acknowledges that: "it’s true that a serious investigation of Bush-era abuses would make Washington an uncomfortable place, both for those who abused power and those who acted as their enablers or apologists. And these people have a lot of friends. But the price of protecting their comfort would be high: If we whitewash the abuses of the past eight years, we’ll guarantee that they will happen again." And Krugman makes an incontrovertible point that: "Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient." It's an oath that defines the constitutional duties of the President of the United States during every moment that he serves in office. In conclusion, Krugman expresses his conviction that: "... to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make." Yes, in the final analysis it is all about the Constitution and it's authority to ensure that our nation is governed by the supremacy of the rule of law and not by the whims of humans acting out their own interests; that is the whole point behind why the Constitution is such a magnificent document that holds a stature high above all other humanly created documents in the history of the human race. And that is why every effort; regardless if it brings shame, legal conviction and a legally determined conviction, must; not should; be made to fully carry out the legal investigation of the Bush Administration by the Obama Administration in order to determine whether crimes had been committed during Bush's term in office no matter how partisan or unseemly such an event might seem to us in the present. Because we, as a nation of free humans are required by our constitutionally bound system of government to do our duty and investigate all illegal and unconstitutional actions. Otherwise, the United States faces a bleak future ruled by the self interests and self determined beliefs of humans rather than by constitutionally sanctioned laws because we are honor bound to “preserve, protect, and defend the Constitution of the United States.” Nothing less nor nothing more is required of us.
That, in its most rudimentary of explanations, is why we must conduct an official, legally dtermined inquiry into alleged illegal abuses of power carried out during the Bush years!

Obama Faces a "Fundamentally Broken" FDA

ALICIA MUNDY and JARED A. FAVOLE, of the Wall Street Journal, write that: "A group of scientists at the U.S. Food and Drug Administration on Wednesday sent a letter to President-elect Barack Obama's transition team pleading with him to restructure the agency, saying managers have ordered, intimidated and coerced scientists to manipulate data in violation of the law. The nine scientists ... say the FDA is a "fundamentally broken" agency and describe it as place where honest employees committed to integrity can't act without fear of reprisal." The letter includes a passage that reads: "There is an atmosphere at FDA in which the honest employee fears the dishonest employee." The nine scientists focus their concerns on the scientific procedures used to review medical apparatuses that they say has been "corrupted and distorted by current FDA managers, thereby placing the American people at risk." A spokesperson for the agency has explained that the FDA is "actively engaged in a process to explore the staff members' concerns and take appropriate action." Commissioner Andrew von Eschenbach and Bill McConagha, the assistant commissioner for accountability and integrity have been contacted by the nine scientists. The Wall Street Journal reporters say: "The agency has been under fire from both parties in both Houses of Congress as being too close to industry. Several leading politicians, including Sen. Chuck Grassley have complained that FDA leaders often ignore or suppress their own scientists' opinions on safety issues involving drugs and devices. Those concerns were also aired in a report by the National Academy of Sciences' Institute of Medicine in 2006. FDA leaders, including drug division chief Janet Woodcock, have said they are working to improve the culture at the FDA, and are listening to dissent from their experts and doctors." The nine scientists have expressed their hopes that the FDA's current leaders are quickly replaced by the incoming Obama Administration. The nine scientists "says the FDA approved such devices without clinical evidence showing they were effective in detecting breast cancer. Since 2006, FDA physicians and scientists have recommended five times that these devices not be approved without valid scientific and clinical evidence. The group said there needs to be a complete restructuring of the evaluation and approval process, and that Mr. Obama needs to sign new legislation giving protection to government employees who speak out against corruption." The untenable situation at the FDA reflects poorly on the conduct of the Bush Administration when it comes to oversight of FDA procedures regarding medical devices. The most important of several questions looming over the FDA's disregard for established scientific procedures is whether the actions of the leadership were intentional or a matter of gross misconduct.