A recently disclosed John Yoo memo that helped grease the skids to war with Iraq may have helped President Obama avoid war with Iran. Or perhaps it's just a bit of epic trolling. Or maybe a bit of both. Whatever the case, it should not go unremarked in the wake of Obama's success in preserving the Iran deal against GOP opposition in Congress, because of how it illuminates the broader landscape of U.S. foreign policy battles over the decades. Whether or not it played any role—or figures in possible future lawsuits—it underscores both how dark and twisted GOP foreign policy and defensive secrecy demands have been, and how Democrats have been much more eager to adopt the GOP's rationales when they hold power than to challenge them when they do not.
On August 24, Obama's Office of Legal Counsel responded to a Freedom of Information Act request by releasing a 2003 John Yoo memo arguing that the Executive Branch could withhold WMD information from Congress, regardless of any laws to the contrary. As explained by Steven Aftergood, of the Federation of American Scientists, who made the request:
Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.
Yoo's memo was dated Jan. 27, 2003, the day before George Bush's State of the Union speech in which he famously lied about Iraq's WMDs: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Yoo's timing certainly seems significant, as does the timing of the memo's release.
Although we don't know for certain what Yoo was being asked to help hide, national security writer and Salon contributor Marcy Wheeler points out, “we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.” We also don't know why the memo was released when it was. But if Obama meant to stand by Yoo's analysis, however suspect, he was essentially telling Congress, just before it returned to vote, “I don't have to tell you anything about Iran or the Iran deal that I don't want. If you've got a problem with that, take it up with John Yoo.”
The significance of the withholding information argument was underscored by some of Obama's bitterest foes in Congress, who—facing imminent defeat in the U.S. Senate, began talking about suing him in court (a la Obamacare) for failing to disclose the so-called “side deal” between Iran and the International Atomic Energy Agency, which governs IAEA inspections.
But Obama's not just engaging John Yoo in his defense. He's bringing in 30 years of GOP national security arguments, dating back the Iran/Contra scandal. (Yes, pesky old Iran, once again!) Wheeler also wrote:
By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.
If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.
Wheeler refers to this as “the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.” And that's precisely the point that progressives should be most worried about, since it signals, once again, just how completely the neocon mindset has infected even those who believe themselves opposed to it.
Reinforcing the sense that the memo's release is a bit of trolling is the second-to-last sentence in the cover letter to Aftergood: “The document is protected by the deliberative process and attorney-client privileges and exempt from mandatory disclosure pursuant to FOIA Exemption Five, 5 U.S.C. § 552(b)(5), but we are releasing it to you as a matter of discretion.” In short: "You don't have a right to this, we're just being nice."
Nice to Aftergood. Not so nice to the congressional back-benchers who seem to have brow-beaten Boehner into submission once again, and are itching to haul Obama into court. As U.S. News & World Report explained:
Under the deal struck this spring by Sens. Bob Corker, R-Tenn., and Ben Cardin, D-Md., the administration was required to turn over the contents of the nuclear deal and “all related materials and annexes.” Once it did so, Congress had 60 days to pass either a resolution of disapproval, which would prevent Obama from granting waivers to U.S. economic sanctions against Iran, or a resolution of approval.
But the Iran/IAEA side deal hasn't been turned over. And opponents of the Iran deal pounced:
“We want to make sure the leadership understands that we do not believe that administration has complied with the Corker bill,” said Rep. Raul Labrador, R-Idaho, during an event with leaders of the conservative House Freedom Caucus on Wednesday.
And, of course, as with Obamacare, there's always the courts:
House Republicans suggested that, with the leadership on board, they could potentially file a lawsuit against the Obama administration seeking an injunction that would tangle the agreement in a legal morass lasting well beyond the target implementation date of the deal sometime this fall.
There's just one problem: the U.S. never had the side deal. It may have known something about it, but like all such deals the IAEA strikes, it was a secret deal between the IAEA and Iran. So if the U.S. (meaning the Obama administration) never had the side deal, it could not turn it over. It turned over everything it had. Case closed.
Or at least that's what would happen in world ruled by facts and logic. But the world of national security law is not that world at all. That world is ruled by the precedent of previous rulings—and, in many cases, per the OLC memo in question, simply by the precedent of previous arguments asserted in private, and never even seen, much less tested, in a court of law. And that is the ground on which the Obama administration appeared to be saying it would be happy to fight.
Both Wheeler and Aftergood pointed out how shoddy Yoo's memo was in making its case. Wheeler calls it "7 shoddily written pages," while Aftergood writes, “Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.” The first is that Yoo blatantly lies about a Clinton signing statement:
Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. “In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions.” But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the President’s comments there have no bearing on WMD proliferation or congressional reporting requirements.
This is just the sort of howler that would never survive the most casual scrutiny by an opposing counsel, which is why the OLC's process of developing its own, secret interpretation of national security law, separate and apart from the public body of law, is utterly ludicrous on its face.
Aftergood also sights a fundamentally deceptive aspect of Yoo's core argument:
Yoo uses the word “disclosure” throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels “could harm the national security” if the information never became public.
And Aftergood also brings up a famous Supreme Court decision that directly undercuts the whole thrust of Woo's argument:
Yoo does not acknowledge or mention the Supreme Court’s 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the President’s freedom of action.
What shouldn't be lost in all of Yoo's legendary shoddiness is where all these legal arguments began, and what they were being used for. As Wheeler points out, “Critically, a key part of the Yoo’s argument relies on an OLC memo [dated December 17, 1986] the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.” She then quotes Yoo's argument:
Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.
In the end, Wheeler summarized:
The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the [IAEA] Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.
But that original OLC memo is not only suspect on constitutional grounds—as Aftergood's comments about the Youngstown decision suggest—it's also suspect as being part of a criminal conspiracy, albeit probably unwittingly. The full scope of that conspiracy may never be known, but a good sense of it can be gained from "Firewall: The Iran-Contra Conspiracy and Cover-up," by special prosecutor Lawrence E. Walsh, a lifelong Republican who was nonetheless horrified by what he discovered in his investigation.
As national security author/journalist Robert Parry explained, in his review of "Firewall":
According to Firewall, the cover-up conspiracy took formal shape at a meeting of Reagan and his top advisers in the Situation Room at the White House on Nov. 24, 1986. The meeting's principal point of concern was how to handle the troublesome fact that Reagan had approved illegal arms sales to Iran in fall 1985, before any covert-action finding had been signed. The act was a clear felony -- a violation of the Arms Export Control Act -- and possibly an impeachable offense.
Though virtually everyone at the meeting knew that Reagan had approved those shipments through Israel, Attorney General Edwin Meese announced what would become the cover story. According to Walsh's narrative, Meese "told the group that although [NSC adviser Robert] McFarlane had informed [Secretary of State George] Shultz of the planned shipment, McFarlane had not informed the president. …
Thus, the OLC memo which Yoo was relying on was not based on a sound factual foundation. It was based on, and helped sustain and propagate the cover story of a normal, lawful (if perhaps misguided) policy process, which shielded Reagan and his top advisers from accountability for their violations of law.
As part of the strategy developed from this beginning, Parry explained:
[V]irtually all of Reagan's top advisers, including Shultz, gave false and misleading testimony to Congress and prosecutors. Their accounts essentially blamed the illegalities on Marine Lt. Col. Oliver North and his bosses at the National Security Council, McFarlane and Poindexter. Pretty much everyone else -- at the CIA, Defense Department, the Vice President's Office and the White House -- claimed ignorance.
This story—with North as the fall-guy—was swallowed virtually without question by all of official Washington. And when Walsh began poking holes in it, he became the victim of a vicious political counter-attack. Although he was ultimately stymied in getting to the bottom of things, Walsh did persevere and have some impact:
The Republican independent counsel also infuriated the GOP when he submitted a second indictment of Weinberger on the Friday before the 1992 elections. The indictment contained documents revealing that President Bush had been lying for years with his claim that he was "out of the loop" on the Iran-contra decisions. The ensuing furor dominated the last several days of the campaign and sealed Bush's defeat at the hands of Bill Clinton.
Walsh had discovered, too, that Bush had withheld his own notes about the Iran-contra affair, a discovery that elevated the president to a possible criminal subject of the investigation. But Bush had one more weapon in his arsenal. On Christmas Eve 1992, Bush destroyed the Iran-contra probe once and for all by pardoning Weinberger and five other convicted or indicted defendants.
All this is to say that Yoo's memo, effectively defending George W. Bush's right to lie to Congress, used as its cornerstone a memo drafted as part of a coverup plan that Bush's father took part in, which could have landed him in prison.
And that is the legal authority that the Obama administration at least hinted at using against congressional Republicans trying to destroy his Iran nuclear deal. Instead of sneakily hinting at using such an argument, one might wish that Obama would openly repudiate and denounce it. Hope and change, right? Right? Hello?