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 [New Mexico] Independent sought to view documents from the governor’s office from January through August 2006 that would have divulged with whom he had met in the months prior to the costly investment that benefited the son of the governor’s friend to the tune of millions of dollars.

But the governor’s office isn’t saying or allowing access to the documents. Its rationale: The governor’s calendars, datebooks and other documents that would shed light on his schedule are protected by executive privilege. [...]

The Independent’s goal was to see if Richardson had met with Marc Correra, the son of Anthony Correra, a Richardson friend, in the months prior to two state boards investing in $90 million with Vanderbilt Financial Trust. The state lost all $90 million in the investment. Correra is said to have been paid $2 million as a third-party marketer, a kind of middleman in the investment world.

In case you’ve forgotten, executive privilege is the legal principle that exists to ensure the quality of the advice some government officials (such as presidents or governors) receive by shielding advisers from being forced to testify about the advice they give. It was frequently cited by the Bush administration to prevent adviser Karl Rove and White House Counsel Harriet Miers from testifying before Congress on the firings of nine U.S. attorneys.

Richardson, a former Clinton administration official and presidential candidate, is currently embroiled in a federal pay-to-play investigation.

You can stay up to date on all the happenings in the Land of Enchantment over at The New Mexico Independent.

As I’ve been reporting here, the Justice Department has been relying heavily on the privilege to try to dismiss cases that could reveal embarrassing information about government actions — much to the dismay of supporters of civil liberties and open government, many of whom also strongly supported Obama.

But refusing to support the State Secrets Protection Act could also prove embarrassing, observes Sargent. This is because when the bill was first introduced last year, its co-sponsors included then-Sens. Joe Biden (D-Del.) and Hillary Rodham Clinton (D-N.Y.), now both senior members of the Obama administration.

As I’ve written before, the bill — which would limit the executive’s ability to use the evidentiary privilege to dismiss outright legal challenges to government conduct — was reintroduced this year by Sens. Patrick Leahy (D-Vt.), Arlen Spector (R-Pa.), Russ Feingold (D-Wisc.) and Ted Kennedy (D-Mass.), as well as Reps. Jerold Nadler (D-N.Y.), John Conyers (D-Mich.) and others in the House.  The bill was reintroduced in February, just as the Obama administration stepped into the Bush administration’s shoes — and began arguing that “state secrets privilege” required the dismissal of several sensitive cases alleging torture, warrantless wiretapping and other illegal activity by the Bush administration.

“Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House,” Johnson wrote.

No kidding.

While The Post has mentioned some of these issues in previous stories, it hasn’t given the Obama administration’s surprising position on “state secrets”  nearly the sort of sustained attention that it deserves.  The Obama administration’s use of secrecy privileges to protect the previous administration’s lawbreaking has been going on for months, as I’ve been writing about here, and other legal bloggers, such as Glenn Greenwald at Salon, have been extensively reporting on as well.

Most recently, in the al-Haramain case, in which an Islamic charity sued the government for wiretapping the group and its lawyers without a warrant, the Obama administration told a federal district court that it simply did not have the authority to do what the court ordered (turn over critical documents that would allow the suit to go forward) and hence, it was not going to comply. What’s more, the new, open, free information-loving administration basically threatened to send in the federal marshals to seize from the judge’s files the offending “secret” documents at issue in the case, if he planned to turn them over to al-Haramain’s lawyers. It didn’t matter that the organization’s lawyers had already seen them, and knew exactly what they revealed: that the Bush administration had been secretly wiretapping the Islamic charity and its attorneys, without a warrant, in violation of federal law.

This was the second major Obama Justice Department showdown over the “state secrets” privilege (explained here). The first, which TWI was first to write about, was in the case of Binyam Mohamed and other torture victims suing Jeppesen Dataplan, the Boeing subsidiary that assisted the CIA in transporting the men to be tortured. Represented by the American Civil Liberties Union, the men have pressed their claims against the company in part to avoid the broad range of immunities government officials usually claim — only to be thwarted by the Bush administration’s assertion that the “state secrets” privilege requires its dismissal.  Incredibly – even to the judges, it seemed — the Obama administration has continued to maintain that position.

In response, last month, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Sen. Arlen Specter (Penn.) introduced a bill that would require judges to look at the classified evidence when the government makes the state secrets claim, rather than blindly accept the government’s claims about the sensitivity of the materials.

Now that the mainstream media is finally taking a serious look at this — as I’ve noted before, some in the press seem to have been willfully avoiding some of these troubling Obama administration positions — that legislation might have a chance.

From a committee statement:

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.

Miers and Rove fought an epic battle over the extent of executive privilege with the committee. They repeatedly refused to testify about the firing of nine U.S. attorneys citing the legal theory that even former presidential advisers cannot be compelled to testify before Congress about their conversations with the president. Last fall, U.S. District Court Judge John Bates who was hearing the case, rejected the Bush administration’s claims of executive privilege. Rove still failed to appear to appear before the committee last month in response to a reissued subpoena.

“This is a victory for the separation of powers and congressional oversight,” said Chairman John Conyers (D-Mich.) “It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.”

Per the agreement, testimony will be held behind closed doors. The committee says it will release a transcript of the proceedings. Neither Rove nor Miers received an immunity deal in exchange for their testimony.

The agreement comes just six days short of the second anniversary of the committee’s first letter to the White House seeking testimony from Miers. Today is also the court-mandated deadline for the Obama administration to file a brief in the Miers case.

Rove’s prior refusals to testify were based on claims of “absolute immunity” due to executive privilege — the idea that even former presidential advisers cannot be compelled to testify before Congress because of the confidentiality of their conversations with the president. But the legality of that claim was rejected by U.S. District Judge John Bates as part of the ongoing suit over executive privilege, House Judiciary Committee v. Harriet Miers.

Apparently, Rove has made it clear that despite the new administration, he still won’t be showing up to testify. In a letter to Rove’s attorney, Bob Luskin, Committee Chairman John Conyers (D-Mich.) said he won’t delay the hearing any further, just so Rove can continue to blow them off:

Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to fail to appear.

Around, and around we go.

But what is the “state secrets” privilege anyway?

The Center for Constitutional Rights has a useful primer on the privilege on its Website, explaining that it’s a privilege that “allows the head of an executive department to REFUSE to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relation interests if disclosed.

Here’s CCR’s view on why that’s a bad thing:

The state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

While that might seem a little one-sided, in truth, that’s pretty much how it worked in the case today.  Although the case was filed against Jeppesen Dataplan, the Boeing subsidiary that helped arrange the CIA’s rendition flights, the government intervened in the case and argued that the “state secrets” privilege required the court to dismiss it.

Why?

Normally, a judge reviews sensitive evidence that comes up in a case and allows it to be filed under seal (out of public sight) if it’s classified or raises issues of national security.  But the government — first the Bush administration, and now the Obama administration — is arguing that only the executive can decide what information should be released to the public.  And in this case, it said, ANY information revealed about the CIA’s extraordinary rendition plan would endanger national security.  Never mind that former CIA director George Tenet and even former President George W. Bush had spoken publicly about the program and defended it.

So you can understand CCR’s criticism:  in this case, it certainly does seem to undermine the very notion of an independent judiciary objectively applying the law to the facts. And it suggests that, much like its predecessor, the Obama administration is endorsing a broad view not only state secrets, but of executive power itself.

Fielding, citing a Department of Justice memo issued by the now much-discredited Office of Legal Counsel in 2007, informed Luskin that the department had decided that Rove, as a former adviser to the president, has “absolute immunity” from testifying to Congress about anything he did in his role as presidential adviser.

Never mind that, as I reported earlier, Judge John Bates of the U.S. District Court in Washington, D.C., strongly disagreed, saying the Justice Department’s case for “absolute immunity” was wholly unfounded in an earlier case in which former White House counsel Harriet Miers was subpoenaed to testify. As Bates put it, the Justice Department’s assertion of absolute immunity was “entirely unsupported by existing case law.” (Miers was issued a contempt citation, though it was never enforced.)

But as we already know, the Bush OLC has its own, rather unusual, ways of interpreting the law — principally, to favor the president’s desired outcome. Fielding apparently was instructing Luskin — and thereby Rove — that Bush would continue to stick to that view of the law even after he was no longer president.

So who’s in charge now?

“We’re in uncharted territory,” Luskin told Newsweek when asked whether former the former president can still control whether his former aide testifies even after the president leaves office.

Luskin has reportedly asked President Obama’s new White House counsel, Greg Craig, for his opinion on the matter. Craig hasn’t yet responded. But as I noted before, this may be the first big test of the new president’s view of the reach of executive privilege — and the sincerity of his pledges to lift the Bush-era veil of secrecy that shrouded the White House for the past eight years.

Does Rove’s past claim of executive privilege, which Bush backed, still exist under the new administration?

Good question.  In the past, Rove, with Bush’s support, has claimed an “absolute immunity” as a former presidential adviser and refused to appear before Congress. President Obama, in the past, has criticized that stance. But will he continue to do so, now that he’s the president?  After all, the executive privilege would now protect him and his cabinet, too.  So is it a closed legal question?

For the answer, I think it’s worth look back at what U.S. District Judge John Bates, a Bush appointee, had to say about it when he ruled on the same “absolute immunity” claim asserted by former White House counsel Harriet Miers.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisers in this or any other context,” he wrote. Then, just in case you weren’t paying attention:  “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law.”

Interestingly, but perhaps not surprisingly, the Bush administration’s Office of Legal Counsel had issued a memorandum concluding exactly the opposite.

Judge Bates continued:

Executive privilege is not absolute even when Congress — rather than a grand jury — is the party requesting the information. . . . Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress.  That would eviscerate Congress’s historical oversight function.

Quoting the Supreme Court in a case called US v. Bryan on the matter, Judge Bates added, as if specifically anticipating the congressional stand-off with Rove:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.

That emphasis was added by Judge Bates, by the way, which makes very clear where he, a conservative Republican federal judge, stands on the matter.

We’ll find out soon enough what Obama’s views are. Given the statement from Rove’s lawyer, it looks like it’s all in the president’s hands now.

From the Committee’s press release, which is posted on The Huffington Post:

“I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” said Mr. Conyers.  Noting that the change in administration may impact the legal arguments available to Mr. Rove in this long-running dispute, Mr. Conyers added “Change has come to Washington, and I hope Karl Rove is ready for it.  After two years of stonewalling, it’s time for him to talk.”

Rove’s prior refusals to testify were based on claims of “absolute immunity” through executive privilege — the idea that even former presidential advisers cannot be compelled to testify before Congress. But the legality of that claim was rejected by U.S. District Judge John Bates as part of the ongoing suit over executive privilege, House Judiciary Committee v. Harriet Miers.

The onset of the new administration creates a lot of new questions as to how Rove will answer this subpoena. Rove is relying on an interpretation of executive privilege that is no longer backed by the administration, so it’s unclear how, or if, he will still be protected.  While it looks likely that this new Congress’ subpoena will finally wrest “privileged” documents from the White House, its still unclear as to whether Rove will testify before the committee.

Some of these questions are still tied up in HJC v. Miers, but some will have to be answered as events play out. This is an entirely unprecedented area of the law, so we’ll just have to wait and see.