Max Boot writes in his blurb for the book that it’s “not the work of some wild-eyed zealot,” but the book is clearly another of Yoo’s attempts to defend his more extreme legal theories, including those that have been roundly criticized by prominent Republicans who served in the Bush administration. Many of those theories — such as the executive’s right to authorize torture and to detain terror suspects indefinitely — are responsible for some of the worst conundrums that President Obama finds himself in today.

Whether cast as Hamiltonian or Machiavellian, Yoo’s point is that “great” presidents have always interpreted their powers broadly in times of crisis, and pesky critics at the time always denounced them for breaking the law. To illustrate this, Yoo rolls out the usual examples — Abraham Lincoln suspending habeas corpus during the Civil War, and Franklin Delano Roosevelt interning the Japanese during World War II.

Although careful not to call George W. Bush a “great” or even “above-average” president, Yoo argues that Bush’s decisions to suspend habeas corpus, use “coercive interrogation methods” (Yoo never uses the word torture) and indefinitely detain without charge “al Qaeda terrorists” (actually, terror suspects) were all simply par for the course — the actions any decent president would take under the circumstances. In Yoo’s view, this is not presidential lawbreaking, even if the president’s actions do violate existing laws. Rather, Yoo argues, the Constitution accommodates such lawbreaking — what Yoo calls “the need to respond to extraordinary events through the President’s executive power” — which apparently is limitless.

This is how, at the Office of Legal Counsel, Yoo managed to advise the president that he could ignore the legal bans on torture and even the Bill of Rights on U.S. soil. It’s too soon to know if that was wrong, Yoo says, since we’re still confronting the terrorist threat. “Only when we have the benefit of distance will we know whether Bush’s aggressive use of executive authority was too much, too little, or just right,” he writes, so complaints about torture and warrantless wiretapping are little more than Monday-morning quarterbacking.

It’s worth remembering that Yoo, now a law professor at University of California – Berkeley, is the subject of a still-unreleased ethics investigation as well as a pending lawsuit, both of which address charges that he not only misconstrued the law but was actively involved in breaking it. His aggressive defense of limitless executive authority sounds even shadier when read in that light.

But Yoo is at his most disingenuous when he criticizes President Obama. In his afterword, Yoo writes that under Obama’s executive orders, the CIA now must conduct interrogations according to the rules of the Army Field Manual — which “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite.”

In fact, the Army Field Manual allows for prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners, as the Center for Constitutional Rights and others have noted. These can be used in combination, and can cause, as former Bush appointees and a congressional investigation have found, long-lasting psychological and physical harm.

Nonetheless, doing away with “the Bush system” means “we will get little timely information from captured al Qaeda terrorists,” Yoo asserts, especially if Obama allows them trials in federal court.

Yoo’s book was released too soon for his own good. Within just the last two weeks we’ve learned that an al-Qaeda terror suspect who tries to blow up a plane can be captured, arrested, charged in federal court and promptly provide information about others planning similar attacks on U.S. targets.

If Yoo’s views weren’t already thoroughly discredited, that last section of his book does the job — which just goes to show that Professor Yoo really should have stayed in academia. Yoo may have good stories to tell about the theories of executive power at work under Madison, Truman and Roosevelt, but when he applies theory to practice he fails miserably. Unfortunately, that’s not just a problem for his publisher. The entire nation is suffering for it now.

The Senate Judiciary Committee’s “Getting to the Truth Through a Nonpartisan Commission of Inquiry” convened this morning to consider Sen. Patrick Leahy’s (D-Vt.) proposal for a sort of “truth and reconciliation” commission.

The hearing was full of all the predictable, lofty statements from illustrious supporters about why a commission would further the American people’s understanding of our nation’s past and true values, and also demonstrate to the world our commitment to truth and justice — most of which I agree with. But what was most surprising was that the Senate Republicans and their witnesses, in the process of ripping apart the idea, made the strongest case I’ve heard yet for why the Department of Justice should prosecute former senior officials of the Bush administration.

Sen. Arlen Specter, the ranking committee Republican, after noting his previous support for judicial review of the Bush administration’s terrorist surveillance program, referred to the recent disclosures of Office of Legal Counsel memos as potentially supporting the case for prosecutions.

“You’ve had some rather startling disclosures, with the publicity in recent days about unusual—to put it mildly—legal opinions” to justify broad executive actions, including homicide. “They’re all being exposed now,” he said, and noted that a forthcoming report from the Office of Professional Responsibility in the Justice Department will likely expose even more. They’re “starting to tread on what may disclose criminal conduct,” he said.

Rather than going off “helter-skelter” and conducting a “fishing expedition,” said Specter, “it seems to me that we ought to follow a regular order here … If there’s reason to believe that these justice department officials have given approval for things that they know not to be lawful and sound, go after them.”

The witnesses called to present the Republican opposition to Leahy’s proposal made the same point.

David Rivkin, a former Justice Department official in the Reagan and first Bush administrations and now a partner at the law firm Baker & Hostetler, said a truth commission “is a profoundly bad idea, a dangerous idea, both for policy and for me as a lawyer for legal and constitutional reasons.”

Objecting that Congress would be improperly delegating its oversight power, and that witnesses would be called out for criminal conduct without the right to defend themselves in a trial, he said: “this is to establish a body to engage in what in essence is a criminal investigation of former Bush administration officials,” and that “the subject matter areas, which such a commission would investigate – among them the interrogation and handling of captured enemy combatants and the gathering of electronic intelligence – are heavily regulated by comprehensive criminal statutes, and ensures that the commission’s activities would inevitably invade areas traditionally the responsibility of the Department of Justice.”

Jeremy Rabkin, a law professor at George Mason University who also opposes Leahy’s idea, similarly insisted that in the United States, where we have a fully developed legal system, prosecutions — not truth commissions — are the appropriate course. A truth commission is something that countries like South Africa and Chile have had, not something we should do here, he said. “In those countries they had to have commissions because they couldn’t have prosecutions. Peace was really in doubt in those countries … they had to trade off prosecutions for peace. We’re not in that situation. If people think we need to have prosecutions, we should have prosecutions.”

Proponents of the truth commission idea, meanwhile, while not ruling out the idea of prosecutions, saw a truth commission as serving a different, and broader, purpose. But it was surprising that, at a hearing cautiously called to discuss “a nonpartisan commission of inquiry,” we heard the strongest case yet for the prosecution of former Bush administration officials — being made by Republicans.

One of the things that most infuriates conservative commentators like Michelle Malkin and Stuart Taylor about Supreme Court nominee Sonia Sotomayor is that in delivering a 2002 speech at UC-Berkeley, the judge said that “our experiences as women and people of color affect our decisions” and that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

If, deprived of their context, these statements sound controversial, in the context of her lecture, titled “A Latina Judge’s Voice,” they made perfect sense.

Sotomayor’s view that judges are influenced by their background and experiences is backed up by studies that show that women judges, for example, tend to rule in a way that’s more sympathetic to plaintiffs in employment discrimination cases than male judges do — probably because, having experienced discrimination themselves as they struggled to advance in a male-dominated profession, they’re more attuned to its signs.

A recent study by political scientists and law professors Christina Boyd, Lee Epstein and Andrew Martin, for example, found that “female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim,” as two of the authors wrote recently in The Washington Post. What’s more, they wrote, “[w]e also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only.”

Sotomayor, in her 2002 lecture, similarly noted that “The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases.”

“As recognized by legal scholars,” she continued, “whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.”

While Sotomayor’s comments, taken out of context, provide fodder for her right-wing critics, it’s worth noting that the judge has the evidence on her side.

Although Carter couldn’t talk specifically about the case of the failed Northwest Airlines Flight 253 bomber, Umar Farouk Abdulmutallab, he explained that the National Counterterrorism Center, or NCTC, is an inter-agency center headed by the CIA. However, it includes members of the FBI. And it’s the NCTC that’s responsible for nominating someone to the terror watchlist. So the FBI should have at least known about the concerns about Abdulmutallab.

That doesn’t answer why Abdulmutallab wasn’t on the terrorism watchlist, but the rest of Carter’s explanation might. Although Carter couldn’t tell me anything about this case, he strongly suggested that just because someone’s father warns the U.S. embassy that his son is a radicalized Muslim who’s hanging around with terrorists in Yemen and sending scary text-messages, that doesn’t necessarily land him on any watchlists.  Not even the low-level watchlist, called the Selectee list (as opposed to the No-Fly list), Carter explained — the one where security officials will simply question or search a person more than usual before letting him on the plane.

“They have to fit a certain criteria,” said Carter. “A reasonable suspicion that they will be involved in terrorist activity. The fact that a person has been radicalized or espoused radical views,”that’s exercising your constitutional rights. You have the right to not agree with the United States. You have the right to hate the United States. It’s only when they’ve committed an act of terrorism” that it becomes a crime.

He continued: “Reasonable suspicion requires an articulable fact when, taken with rational inferences” leads to the conclusion that the individual is “engaged in terrorist activity” or “preparing for terrorism.”

Apparently, the NCTC didn’t think that the specific warnings about radicalization and terrorist training from the suspect’s own father warranted asking him questions or searching him or his belongings before allowing him to board a plane for the United States.

As former Vice President Dick Cheney and some Republican lawmakers continue to debate whether torture works and was a legitimate interrogation technique during the Bush administration, it’s almost jaw-dropping to read some of the memos that were written by the real experts on interrogation techniques in the U.S. government, warning the Defense Department all the way back in 2002 that the sorts of abusive techniques they were considering, and in some cases already using, were not only bound to fail, but were unequivocally illegal.

One memo, drafted in November 2002 by personnel from the FBI’s Behavioral Analysis Unit — the unit best trained to understand human behavior and how to interpret and manipulate criminal suspects — was among the documents released by the government on Friday as part of the ongoing Freedom of Information Act litigation brought by the American Civil Liberties Union. The memo was sent to the Commanding General and Jt. Task Force 170 — the unit of the Southern Command in charge of detaining and interrogating detainees at Guantanamo Bay.
The BAU, explained elsewhere in documents released on Friday, is “comprised of Supervisory Special Agents with an average of 18 years of experience in criminal and counterintelligence investigations.”

The memo lays out clearly and simply what the interrogation experts at the FBI knew about interrogations of terror suspects, what would or would not work on them, and what sort of conduct was illegal. And it reads much like the sorts of arguments we’re now hearing from the America Civil Liberties Union and other civil and human rights organizations arguing that senior defense department officials and lawyers who approved abusive techniques ought to be criminally investigated.

“Central to the gathering of reliable, admissible evidence is the manner in which it is obtained,” the authors write to the General. “Interrogation techniques used by the DHS [Defense Human Intelligence Services, part of DoD] are designed specifically for short term use in combat environments where the immediate retrieval of tactical intelligence is critical. Many of DHS’s methods are considered coercive by Federal Law Enforcement and [Uniform Code of Military Justice] standards. Not only this, but reports from those knowledgeable about the use of these coercive techniques are highly skeptical as to their effectiveness and reliability.”

Most of the detainees at Guantanamo Bay had already been interviewed repeatedly overseas by the DHS, so the FBI recommended a different approach be taken at Guantanamo.

The FBI favors the use of less coercive techniques — ones carefully designed for long-term use in which rapport-building skills are carefully combined with a purposeful and incremental manipulation of a detainee’s environment and perceptions.

The BAU staff explain:

FBI/CITF agents are well trained, highly experienced and very successful in overcoming suspect resistance in order to obtain valuable information in complex criminal cases, including the investigations of terrorist bombings in East Africa and the USS Cole, etc. FBI/CRT interview strategies are most effective when tailored specifically to suit a suspect’s or detainee’s needs or vulnerabilities. Contrary to popular belief, these vulnerabilities are more likely to reveal themselves through the employment of individually designed and sustained interview strategies rather than through the haphazard use of prescriptive, time-driven approaches. The FBI/CITF strongly believes that the continued use of diametrically opposed interrogation strategies in GTMO will only weaken our efforts to obtain valuable information.

The memo goes on to list the interrogation techniques being used, and then to list which ones are “not permitted by the U.S. Constitution.” Those include: the use of stress positions for more than four hours; hooding; 20-hour interrogation segments; stripping a detainee of all clothing; and exploiting individual phobias, such as fear of dogs, to induce stress. They also include the use of scenarios designed to convince a detainee that death or severe pain is imminent for him or his family; waterboarding (here called “use of wet towel and dripping water to induce the misperception of drowning”); and exposure to cold weather or water.

All of those techniques, we now know, continued to be used by the Defense Department.

The FBI also warned that the use of such techniques would make any evidence derived inadmissible in federal court and if admissible in a military commission, likely to be given “little or no weight.”

The FBI drafters of the memo further explained that most of those techniques, particularly the last four, would also violate the U.S. anti-torture statute. It recommended that they not be used.

We know that the Pentagon and CIA went ahead and used them anyway. Instead of relying on their top experts in the FBI, they relied on a plan developed by a couple of private psychologists with no experience whatsoever in interrogating terror suspects and who cribbed much of their plan from a study of Chinese Communist techniques used to obtain false confessions from American prisoners during the Korean war. Senior U.S. officials then sought legal opinions from the Office of Legal Counsel that would tell them that these techniques, contrary to the FBI’s opinions, were not illegal. Conveniently, those opinions did cast the techniques described in a completely different light.

The most recently released memos have not gotten much attention, as torture fatigue sets in and the Bush torture program becomes old news. But the FBI memo is important because it adds to the growing body of evidence that senior defense department and CIA officials deliberately ignored the opinions of the best trained and most experienced people in the government about interrogations that abusive interrogations would not work and were not legal. Add that to the rest of the evidence that senior Bush administration officials did not act in good faith in relying on the Office of Legal Counsel memos that justified the techniques the Defense Department and CIA were using, and this latest declassified memo adds weight to the argument that something fishy was going on at the highest ranks of government that demands further investigation.

This latest memo also sheds light on why some in the Defense Department and some Republicans are now so eager to try Guantanamo detainees in military commissions rather than in Article III federal courts. They know that the evidence extracted from the prisoners under the “enhanced” methods Cheney is still defending doesn’t stand a chance in front of an independent U.S. federal court judge.

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As Spencer has pointed out, the State Department says it passed along the warning about Abdulmutallab from his father to the rest of the government through an interagency process. That does not appear to have alerted the FBI, which itself seems odd. But even if it had, there’s no guarantee that would have landed Abdulmutallab on the terrorism watchlist — also called the “no-fly list.”

As the 2008 FBI audit released last May explained, the FBI’s practices for nominating people to the terror watchlist were a mess. Although “FBI policy allows for the nomination of known or suspected international terrorists for whom the FBI does not have a terrorism investigation,” the controls over those nominations were “weak or nonexistent,” the report concluded. The report further found that in 15 percent of cases, terror suspects who should have been nominated for the terror watchlist were not — including one suspect who was under investigation for four years.

When Congress takes up the matter next month, it should consider why the FBI wasn’t informed about a Nigerian Muslim flying to the United States after his own father warned he was an Islamic extremist presenting a safety risk — and whether the FBI and the rest of the government has cleaned up its own procedures enough to flag a suspect like this in the future.

Just 30 percent oppose using such methods on the 23-year-old Nigerian, Umar Farouk Abdulmutallab, who allegedly attempted to blow up a plane en route to Detroit on Christmas Day. Twelve percent are not sure.

Male and younger voters are more supportive of aggressive techniques than women and older voters, and Republicans and independents favor using them more than Democrats, Rasmussen reports.

What’s more, 71 percent of U.S. voters think that Abdulmutallab should be investigated by military authorities as a terrorist, rather than being treated as a civilian. Only 22 percent say he should be treated as a civilian criminal, which is his current status.

Abdulmutallab has been charged with attempting to blow up an aircraft and kill U.S. civilians by federal prosecutors in the Eastern District of Michigan.

Just in case he wasn’t familiar with it, Sen. Al Franken (D-Minn.) decided to read the Fourth Amendment to the Constitution to David Kris, assistant attorney general of the Justice Department’s National Security Division, who was testifying to the Senate Judiciary Committee today to urge reauthorization of expiring provisions of the USA Patriot Act.

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part:  “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Kris explained that the courts have held that the law’s requirements that the person be described, though not named, is sufficient to meet the demands of the Constitution. That did not appear to completely satisfy Franken’s concerns.

Today’s Judiciary Committee hearing has so far proceeded much the way yesterday’s House Judiciary Committee subcommittee hearing did, with Democrats (except the Justice Department witness) expressing skepticism that the current law adequately protects Americans’ civil liberties and Republicans emphasizing the need to have all possible tools for law enforcement available because another major terrorist attack could occur at any time

Immigration remained a divisive political issue in 2009, although it largely simmered on the sidelines as Congress and the president focused their legislative efforts on other priorities. A comprehensive immigration reform bill wasn’t even introduced in Congress until mid-December. Still, the new administration stepped up the enforcement of immigration laws, laying the groundwork for 2010 proposals for broader reform, including opportunities for legalization of some undocumented immigrants. These five individuals had the greatest influence the immigration debate in 2009.

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