DOJ Releases OLC Memos: Why Hide Bradbury’s Legal Smackdown?

The DOJ has released a number of previously suppressed OLC memos today, including one dated October 6, 2008, in which Steven Bradbury calls prior DOJ/OLC/WH and other governmental counsel rationale into serious question.  

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of "bullshit." 

It’s laugh out loud funny.  Or would be if it weren’t for the fact that it took more than 7 years to issue it — during which time the government was still operating under the craptastic legal assumptions, one presumes. 

Why was this kept hidden?  

One would guess because the Bush WH refused to declassify the memos on which this legal bullshit calling was based.  But I smell a hefty dose of CYA with a side of keeping Cheney’s and Addington’s ginormous egos in check from the Mukasey crew.

Bradbury doesn’t pull punches, either.  In a document entitled "Memorandum for the Files re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities," Bradbury’s first paragraph begins with an urge for all members of government to exercise substantial caution on relying on the above-reference memorandum, authored by Gonzales, Haynes, Yoo and Delahunty as precedent of the OLC, and that this "should not be treated as authoritative for any purpose."

Let me get this straight:  we waited all the way to October 6, 2008 — more than 7 years — to issue such a memoranda governmentally regarding a fundamental question of posse comitatus?  One that the OLC clearly got wrong?  

And where is David Addington’s name in all of this, since it’s fairly well known at this point that he drafted a hefty helping of this dreck? Guess he can draft it but doesn’t deign to be a signatory?

Bradbury goes on to issue a blanket statement that the OLC is not to be used for:

…broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11…

Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?

Bradbury goes on:

This memorandum concludes in part V, pages 25-34, that the Fourth Amendment would not apply to domestic military operations designed to prevent and deter further terrorist attacks. This does not reflect the current views of this Office….

You don’t say?

And then Bradbury goes on to say that statements regarding the First Amendment being restricted as to press and public speech were overly broad and not appropriate, that the attempt to gin up the "military purpose" vagueness as a reason for posse comitatus to not apply was unsupported crap (my paraphrase), and that the AUMF didn’t give the Bush Administration a "military purpose" to use armed forces for police actions within US borders unrestrictedly.

Further, Bradbury succinctly decimates Insurrection Act claims because:

…to authorize the use of the military for law enforcement purposes would require the actual obstruction of the execution of federal law or a breakdown in the ability of state authorities to protect federal rights.

In other words, the legal dunces who drafted this didn’t bother reading the actual code requirements and we at OLC these days are horrified.  Please use your round file, thank you.

You think they held this particular OLC memo back out of caution? National security grounds? Or sheer embarrassment?

47 Responses to "DOJ Releases OLC Memos: Why Hide Bradbury’s Legal Smackdown?"
WVAPA | Monday March 2, 2009 01:15 pm 1

Where can one find this delicious reading material?

Christy Hardin Smith | Monday March 2, 2009 01:17 pm 2

Very first link in the post takes you to all the memos. They are currently in limited PDF format — they are working on a more accessible format for later int he day, I think.

foothillsmike | Monday March 2, 2009 01:29 pm 3

Gee maybe they held this back in the hopes that Gonzalez could find a job in the interim.

Christy Hardin Smith | Monday March 2, 2009 01:29 pm 4
In response to foothillsmike @ 3

So sorry for their luck on that one, then…

Peterr | Monday March 2, 2009 01:30 pm 5

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”

I got the politely worded part, but I missed the thin veil.

Says Bradbury, “We also judge it necessary to point out that the 10/23/01 Memorandum states several propositions that are either incorrect or highly questionable.” This reminds me of Reggie Walton’s smackdown of a pro-Libby amicus brief at Libby’s sentencing hearing: “I would not accept this brief from a first year law student.”

Bradbury did everything but cc his memo to Dean Edley at Boalt Hall to call his attention to the quality of the legal logic employed by Professor John Yoo. If a tenure committee looked at the 10/23/01 memo as a part of their decisionmaking, one gets the idea from Bradbury that the committee would not only recommend “no tenure” but also suggest that the relevant bar association might want to consider revoking the good professor’s law license.

Christy Hardin Smith | Monday March 2, 2009 01:33 pm 6
In response to Peterr @ 5

Pretty much every single paragraph and bullet point has a “this is crap” moment, doesn’t it? Owie.

foothillsmike | Monday March 2, 2009 01:36 pm 7
In response to Peterr @ 5

Are you suggesting that bushes legal advise was incompetous briefous

Peterr | Monday March 2, 2009 01:36 pm 8
In response to Christy Hardin Smith @ 6


“The memorandum’s treatment of the following propositions is not satisfactory . . .”

Christy, if this was the first line on someone’s evaluation of your bar exam, what would be the odds that you would pass?

Christy Hardin Smith | Monday March 2, 2009 01:38 pm 9
In response to Peterr @ 8

Close to zero. And when you read through those bullet points, you see time and time again that Bradbury has serious doubts that they bothered to read the underlying constitutional provisions, statutory rules and regs and applicable case law.

He might as well have said that they were just making shit up as they went along.

bmaz | Monday March 2, 2009 01:39 pm 10

Man, you have exercised commendable restraint. I could not have been so polite. Perhaps Mr. Bradbury would like to refund the pay that he admits effectively not earning in the years prior to October 6, 2008. I do not even know how to calculate the sheer amount of brazenness involved in knowing something is illegal, writing a self serving “legal opinion” to supply enough deniability to create reasonable doubt as to a plethora of crimes you then go about committing and, then when done, saying “ha ha okay, well those opinions weren’t actually right, thanks it’s been a pleasure, see you later”.


Jkat | Monday March 2, 2009 01:40 pm 11

i was just reading the OLC file on the deployment of military force and kept scratching my butt over the heavy reliance in the footnotes on the federalist papers .. wondering to myself “how can they use this as a rationale for deploying federal army troops when it originates from a time when there was no standing federal army .. nor plans to keep one .. ” ..

thanks christy ..

Christy Hardin Smith | Monday March 2, 2009 01:40 pm 12
In response to bmaz @ 10

It was a quick draft, or it would have been snottier. Am reading through the 1/15/09 memo now and it’s really pissing me off…

Fern | Monday March 2, 2009 01:43 pm 13

Christy, what does the release of these materials suggest about what the current DOJ is up to?

Jkat | Monday March 2, 2009 01:45 pm 14

y’all double down on the snotty and snarky eh .. it’s one of the main reasons i come here :)

Christy Hardin Smith | Monday March 2, 2009 01:47 pm 15
In response to Fern @ 13

I think it means that they are following through with what they have said they would do all along. More transparency, cleaning up the mess left behind — the appointment of Dawn Johnson to OLC was a very good sign in my book, and this is likely part and parcel with her long-term commitment to DOJ working properly in the public’s interest.

rwcole | Monday March 2, 2009 01:53 pm 16

Hi Redd,

Thanks for the post- we may finally find out just how weak the administrations arguments actually were. Looking forward to your follow ups.

Christy Hardin Smith | Monday March 2, 2009 01:55 pm 17
In response to rwcole @ 16

You are most welcome. There are several memos released today and it’s a trove of craptastic idiocy. Will keep me busy for a while. Sad to say…

foothillsmike | Monday March 2, 2009 01:56 pm 18

Did Harriett Meirs have any role in this crap?

Hmmm | Monday March 2, 2009 01:58 pm 19

I guess the bigger question might be: What does the release of the underlying memos, not so much the smackdown, mean for trials of accountability? What SoL’s have already run vs. which ones are still alive?

Christy Hardin Smith | Monday March 2, 2009 01:58 pm 20

She would have been working as a presidential assistant at that point — Gonzales was WH counsel during the time frame that the initial memo was written in 2001. And she’s already resigned as WH counsel by the time that Bradbury’s memo was released in October, 2008, after that disastrous outing for SCOTUS fail.

oldoilfieldhand | Monday March 2, 2009 02:00 pm 21

Thanks Christy! It’s hard to underestimate the level of incompetency displayed by the Bush DOJ. Perhaps they really expected a permanent Republican Majority that would not revisit their decisions or the “legal scholarship” they were based upon.

jayt | Monday March 2, 2009 02:01 pm 22

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”

I have *got* to learn how to do that.

The polite part, that is….

Eureka Springs | Monday March 2, 2009 02:03 pm 23

Frog march all of these people… take a few strolls around the court house and jails before entering.

dosido | Monday March 2, 2009 02:04 pm 24

o/t but is anyone else sick sick sick of the ongoing media buzz about Big Fat Liar Rush? Individual liberty is wingnut code for “money and guns”. they certainly do NOT mean civil rights and legal protection of the individual versus govt prosecution. I just want to puke.

Christy Hardin Smith | Monday March 2, 2009 02:05 pm 25
In response to dosido @ 24

I was sick of Rush long before the latest spate of crap started, frankly. *G*

Christy Hardin Smith | Monday March 2, 2009 02:06 pm 26
In response to jayt @ 22

I think it helps when Dick Cheney’s ego is on the line and you might get a visit from a crazed and irate David Addington. “But, I said you were a moron politely, sir.”

dosido | Monday March 2, 2009 02:07 pm 27

Exactly! So why are people going on and on about him? ugh.

note to Rush, the black shirt isn’t so slimming on TV.

Christy Hardin Smith | Monday March 2, 2009 02:08 pm 28

Thanks for all the diggs, gang!

dosido | Monday March 2, 2009 02:08 pm 29

or ”with all due respect”…

foothillsmike | Monday March 2, 2009 02:09 pm 30

Individual liberty is wingnut code for “money and guns”.

I think individual liberty is wingnut code for bend over the corporations and super elite are not through screwing you yet.

JimWhite | Monday March 2, 2009 02:10 pm 31

When we get the searchable version, we can find out if Bradbury said “Bless their hearts”…

foothillsmike | Monday March 2, 2009 02:10 pm 32
In response to dosido @ 24

30 was for you

dosido | Monday March 2, 2009 02:11 pm 33
In response to foothillsmike @ 32

LOL. I read you loud and clear! That’s one for the plaque!

Waccamaw | Monday March 2, 2009 02:14 pm 34
In response to dosido @ 24

Amazing that a fat bag of hot air can generate that much attention, ain’t it?

No insult intended to large bags and hot air individually.

Hugh | Monday March 2, 2009 02:20 pm 35

Shorter Bradbury: All that crap I signed off on for all those years? Well, I didn’t mean any of it, and, oh yes, I’m outta here.

Mauimom | Monday March 2, 2009 02:24 pm 36

Doesn’t this “note” from the DOJ/OLC site just about say it all:

Due to public interest in this matter, the Department of Justice is releasing these documents in an inaccessible format.

Hugh | Monday March 2, 2009 02:33 pm 37

BTW from my scandals list. Steven Bradbury was probably illegally holding the post of head of the OLC.

Pursuant to Title5 of the US Code 3346(b)(2)(B): “if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve . . . for no more than 210 days after the second nomination is rejected, withdrawn, or returned.”

Bradbury was nominated on June 23, 2005 and again on January 25, 2006. He was nominated a third time on January 9, 2007 and again on January 23, 2008. It is the nomination that will not die.

Redshift | Monday March 2, 2009 02:36 pm 38
In response to dosido @ 27

Because hanging him around the necks of the GOP is effective politics. They’ve managed to get Rush and Steele to engage in a verbal slap-fight, which is great. No need for us sane people to pay attention to the details, though.

Jkat | Monday March 2, 2009 02:37 pm 39

it’s “1984 ” .. all over again … doublespeak much do they ??

Jkat | Monday March 2, 2009 02:39 pm 40

oh ..btw .. i’d put the lawyers i read here at the Lake up against the bushco evil lawyers any damn day ..

y’all are Awesome …

Loo Hoo. | Monday March 2, 2009 02:42 pm 41

Imagine if McCain had been elected…

Christy Hardin Smith | Monday March 2, 2009 02:45 pm 42
In response to Hugh @ 35

Yes, the lack of any presonal responsibility from Bradbury was deafening. If you think this one is bad, wait until you read the 1/15/09 one.


siri | Monday March 2, 2009 04:17 pm 43

McCassey should be brought up on charges for condoning all the chit he condoned as AG, doncha think?
need to finish reading but no one ever says JACK about that and him!

siri | Monday March 2, 2009 04:18 pm 44

his name ticks me off to point of letting fly without doing my pre-checking for sp!!!!!!!!!!!!!!!!!!!

siri | Monday March 2, 2009 04:24 pm 45
In response to siri @ 44

and whenever i get ticked at Muckassy i conjure up DiFi and Schumer and send them a silent “prayer”……………………..

jakebob | Monday March 2, 2009 06:24 pm 46

Clue me in, please, legal eagles….
Am I correct in surmising that you can skate away from a federal rap if you can just conceal/suppress the evidence long enough for the Statute of Limitations to put 5 years between you and the actual criminal act? Do obstruction of justice considerations impact this at all?

john in sacramento | Monday March 2, 2009 07:24 pm 47

Then there’s this, not from today, and not on topic, but …

New documents on Bush-era torture, secret detention, extraordinary rendition

February 12, 2009, New York and Washington, DC—Documents obtained through a Freedom of Information Act lawsuit confirm Department of Defense involvement in the CIA’s ghost detention program, revealed three prominent human rights groups today. The groups—Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the Center for Human Rights and Global Justice (CHRGJ)—today released documents obtained from the U.S. Department of Defense (DOD) and U.S. Department of State (DOS), resulting from their lawsuit seeking the disclosure of government documents that relate to secret detention, extraordinary rendition, and torture. At a public press conference, the groups revealed that these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the DOD’s cooperation with the CIA’s ghost detention program; and show one case where the DOD sought to delay the release of Guantánamo prisoners who were scheduled to be sent home by a month and a half in order to avoid bad press.…..a-torture/

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