John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.
We need to know how the memo was used. Bradbury suggests it was not much relied upon; I don’t believe that for a second. Moreover Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it.
It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.
These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.
Among these memos was one for the files from Steven Bradbury, whom the Senate refused to confirm to run OLC, but who continued as a squatter in the position through the end of the Bush Administration. In his memo, the self-styled OLC head rejected a series of John Yoo-authored memos, noting the painfully obvious reasons why they were incorrect (for instance, Yoo’s penchant for misquoting the Constitution). He did this on January 15, 2009—as he was clearing his desk and preparing to hunt for a new job. So why did he leave the ridiculous Yoo memos in place until the last possible second? Michael Isikoff furnishes a very plausible analysis on MSNBC: