There's going to be a lot drawn out of the newly released Yoo memos over the nexts days and weeks, but we should all be paying attention to the timing of their repudiation.
As this Washinton Post article makes clear, Steven Bradbury, acting head of DOJ's Office of Legal Counsel for the last three years of the Bush administration, issued a nifty little memo to the file just five days before Obama's inauguration, confirming that "certain propositions" regarding the President's "wartime" ability to trump the Constitution were no longer operable.
Think this has anything to do with the fact that the new "wartime" president is a Democrat?
The details, which were new to me at least, are here:
The defects in most of the early opinions were summarized in a document titled "Memorandum for the Files" and signed by Steven G. Bradbury, who served as the acting head of the legal counsel's office for the Bush administration's last three years without being confirmed by the Senate. Bradbury dated the memo five days before Obama's inauguration and said its purpose was to "confirm that certain propositions" asserted previously by the office were no longer supported. He said key national security officials had already been advised of the change of heart but did not say when.
Let's give credit where credit is due to the Washington Post reporters (Jeffrey Smith and Dan Eggen) for getting this out there in the context of the Yoo memos disclosure, although they could have completed the circle on a couple points a little more, including
(1) the timing of this pre-transition formal "repudiation," (extra-Constitutional powers are for Republican presidents only),
(2) the fact that these memos were (supposedly) repudiated only in oral fashion and only to "key national security officials" at some unspecified time (preserving maximum flexibility to use these memos as a get-out-of-jail card for Constitutional violations conducted by anyone at anytime up to five days before the handover), and
(3) the silence from Bradbury regarding whether these "no longer supported" opinions justifying Constitutional violations were actually, you know, used to justify Constitutional violations by anyone at DOJ or within the Bush administration.
Anyone doubting they were intended to be used, were used, and will be asserted going forward to defend against Constitutional violations (should there be any investigation/prosecution at all), should read carefully the articles description of Bradbury's attempt to justify the "defective legal opinions" (post-9/11 fear, of course) and also to claim that the "flaws" that were "noticed later" does not mean they did not "satisfy" professional standards:
Bradbury explained the defective legal opinions were issued "in the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation." He said the fact that legal flaws were noticed later was not meant to suggest that the authors did not "satisfy" professional standards.
Apparently, Bradbury believes that reasonable people (and reasonable lawyers) can disagree about, for example, whether the Fourth Amendments restrictions on search and seizure apply to actions by the military, against U.S. citizens, within our borders. He's got to say that to protect qualified immunity for officials who violated the Constitution relying on the Yoo memos. So he does, no matter how ridiculous it sounds. Making Bradbury, in the end, no different than Yoo. I like to think of him as Yoo2.