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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 with 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?

Christy Hardin SmithCommunity

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?  

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com