Annals Of Repudiation

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
As a practical matter, the disastrous John Yoo Era in American Constitutional law ended several years ago, when the Bush administration ideologue, and the zealous attorney-architect of its most dubious terror law policies, left the Office of Legal Counsel, and the ruin he had helped create there, and slunk back to California to teach law at Berkeley's Boalt Hall.

As an official and historical matter, however, Yoo's day of reckoning came Monday, when the Justice Department released to the world a startlingly detailed and candid repudiation of many of his worst justifications for waging war on terrorism. What made the denunciation all the more powerful is that it came from the Bush administration itself, in the form of an October 8, 2008 "memo to the file" from then-Principal Deputy Assistant Attorney General Stephen G. Bradbury.

Bradbury's memo doesn't quite rise to the level of Nikita Khrushchev's famous denunciation of Joseph Stalin in 1956. But by American standards it was an absolutely extraordinary display of public humiliation. No small wonder that the Obama administration eagerly disclosed it to the world. If nothing else, the now-disgraced professor won't so easily get as many public forums to repeat his now-discredited theories of executive power.

The late 2008 memo by Bradbury specifically tore asunder a memo dated October 23, 2001 written by Yoo and Robert J. Delahunty, OLC Special Counsel. But first came an apologia that might also be read as an epitaph for the Bush administration's entire effort to shape the law to meet the threat of domestic terrorism: "It is important to understand the context of the [2001] Memorandum," Bradbury wrote, "It was the product of an extraordinary - indeed, we hope, a unique - period in the history of the Nation: the immediate aftermath of the attacks of 9/11."

"Perhaps reflective of this context," Bradbury continued, "the [2001] Memorandum did not address specific and concrete policy proposals; rather it addressed in general terms the broad contours of hypothetical scenarios involving possible domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic terrorist attacks of 9/11.

"Thus the [2001] Memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law."

Got that? That's Bush-speak for "they all freaked out back then but we should ignore and forgive them now." And Bradbury himself does not have clean hands in this sorry episode. He authorized, or at least tried to justify, controversial "interrogation" tactics between 2005 and 2007 and he was a major cheerleader for the Bush administration's warrantless domestic surveillance program. But Bradbury's own complicity in terror law policy, and his transparent attempt at covering his own ass here at the end of his president's tenure, doesn't diminish Yoo's own culpability. If anything, it enhances it; Bradbury is no pussy-footing civil libertarian criticizing Yoo's jurisprudence.

Let's get back to the gory details. "The 2001 memorandum concludes that the Fourth Amendment would not apply to domestic military operations designed to deter and prevent further terrorists attacks," Bradbury wrote. "This conclusion does not reflect the current views of this Office." Are you as relieved as I am that by the end of the Bush administration most of the Fourth Amendment's protections against unreasonable searches and seizures were still on the books?

It wasn't just vital Fourth Amendment rights that Yoo and Company imperiled. Back to Bradbury: The 2001 Memo "also contains broad statements … suggesting that First Amendment speech and other guarantees of individual liberty under the Constitution would potentially be subordinated to overriding military necessities." First they came for Olbermann … and no one spoke up … Bradbury now critically says: "These statements, too, were unnecessary to the opinion, are overbroad and general, and are not sufficiently grounded in the particular circumstances of a concrete scenario, and therefore cannot be viewed as authoritative."

And it wasn't just the Constitution that Yoo inappropriately sought to bend. Bradbury noted that the 2001 memo posited "that the domestic deployment of the Armed Forces by the President to prevent and deter terrorism would fundamentally serve a military purpose, rather than a law enforcement purpose, and therefore the Posse Comitatus Act would not apply to such operations." Moreover, "the Insurrection Act would provide general authority for the President to deploy the military domestically to prevent and deter future terrorist attacks."

The 2001 memo is scary enough by itself. But there were many other dubious legal opinions penned by Yoo and his colleagues (and, later, by Bradbury). Unfortunately, the ideas in some of those memos were implemented - like Jay Bybee's infamous 2002 "torture memo" - to disastrous effect. Bradbury didn't have the time or the inclination to apologize for all of these travesties upon justice (although the Justice Department also released Monday other CYA notes Bradbury penned before he left office). But at least he got started with Yoo.

Bradbury's convenient revisionism is too little, too late, the critics cry. I disagree. At least he took the time to get the OLC on the historical record as having conceded some of its mistakes in judgment and legal reasoning. This is a lot more than you can say about a lot of other people who helped craft these policies. Consider that the next time Yoo worms his way onto a newspaper's editorial pages, onto a speaker's panel, or to a bookstore or classroom near you.
  • Andrew Cohen

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