Friday, May 18, 2007

You wonder if Bob had anything to do with it?


Yes, grasshopper: Professor Robert Delahunty of the St. Thomas Law School here in our fair city. Spot doesn't have a link at the moment, but he recalls that Professor Bob was going to teach a course in legal ethics at the University of Minnesota Law School this spring semester, too. Sigh.

What's "it?"

"It" grasshopper, was the initial approval of the NSA's warrantless wiretap program that ran unimpeded before a new guy at the DOJ's Office of Legal Counsel, Jack Goldsmith, raised questions about it and told Attorney General Ashcroft not to recertify the program. Deputy Attorney General Comey wouldn't certify it when Ashcroft was in the hospital, and neither would Ashcroft from his hospital bed:

The must-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board--from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending. [italics are Spot's]

Spot has to grudgingly agree with Marty Lederman's quoted language from Balkinzation. The president, as Spot as mentioned in an earlier post, reauthorized the program anyway.

Golly, Spot, who approved this NSA program in the first place?

It was John "Organ Failure" Yoo who was in charge of the OLC at the time. This John Yoo:

Well, fortunately for us we have this recent interview conducted by Frontline, in which John paints a fairly clear picture about the sorts of programs that he authorized (including data mining that was prohibited by Congress), and the legal justifications, based on Article II, that were the underpinnings of the authorization. It's consistent with the story he tells in his recent book. The authorization was likely to be remarkably indiscriminate, and it was based on a theory that the Commander in Chief can disregard any laws that he thinks get in the way of how best to defeat the enemy: "There's a law greater than FISA, which is the Constitution . . . ."

This is Professor Organ Failure's elucidation of his "unitary executive theory" which says that under Article II of the Constitution the president can do anything he wants so long as it is in pursuit of "national security" objectives. This is a Nixonian idea. The president decides what is a national security objective, naturally.

Well great, Spotty, but what does this have to do with Robert Delahunty?

Oh, thank you grasshopper. Spot got a little carried away and almost forgot!

In addition to approving the NSA warrantless wiretap program, when John Yoo was at OLC at DOJ, he authored a memo, referring in part to the same constitutional authority, and approving coercive interrogation tactics of detainees, saying that it wasn't torture if the procedure didn't result in "organ failure" or death.

So that's why you call him Professor Organ Failure! You still haven't told us what that has to do with Robert Delahunty.

If you had read the first link in this post, grasshopper, you would know that Robert Delahunty co-authored the torture memo and was at the OLC with John Yoo at the time the NSA warrantless wiretap program was initially approved by the OLC. Spot hasn't seen any reports of Delahunty's involvement in the NSA program, but you can about bet he had a role.

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