Secret Memos

The George W. administration was fond of secrecy:  secret renditions to foreign countries, secrect meetings to develop an energy plan, and secret legal opinions were among the secrets.  We’ve known about the existance of the John Yoo memos to justify just about everything for a while now, but the content is now public and he is either a very bad lawyer or he wanted to please his masters at Justice and in the White House so much he would write anything thing.

John Dean has a long essay  in FindLawanalyzing the Yoo memos and their effect of the Office of Legal Counsel.

In reading these newly-released memos, along with the previously-released documents relating to the use of torture as an interrogation technique, it is pretty clear who was the bad apple at OLC, it was the lead attorney in pursuing these extreme and baseless OLC positions law professor John Yoo. It is likely that Yoo did the drafting, and then either he or his boss, the Assistant Attorney General in charge of OLC, Jay Bybee, signed off on the memos. Bybee now sits on the U.S. Court of Appeals for the Ninth Circuit.

Dean also discusses the quality of Yoo’s legal work

Because Yoo became the leading legal adviser to the Bush White House after 9/11, many have looked closely at his scholarship, and more will likely scrutinize Yoo’s work with this new release of his OLC work product. When writing Broken Government, I paused to look at Yoo’s work and frankly was shocked to find such an intelligent person engaging in blatant intellectual dishonesty. It was not merely occasional excesses. Rather, when I examined his book War By Other Means, I found page after page of his material to be filled with deliberate distortions. In my book, I set forth example after example of his technique, and in doing so, I did not even scratch the surface of his deceitful methods of advocacy.

Also, I found that I was not alone in questioning Yoo’s intellectual integrity. For example, Georgetown law professor David Luban, when reviewing Yoo’s book War By Other Means for the New York Review of Books(Mar. 15, 2007), reported that “Yoo argues forcefully and intelligently, but not always honestly. Half-truths, straw men, double standards, selective quotations, significant omissions, and caricatures of his opponents’ positions – all are characteristic of War By Others Means.” [Emphasis added.] Unfortunately, this is how Yoo wrote legal opinions for OLC as well, which was very much contrary to the prior standards of that office.

So, are we going to prosecute Yoo and Bybee?  Maybe they really didn’t have any evil intent, but they were interested in justifying the actions of those they worked for and those actions lead to violations of little things like the Geneva Conventions and the Convention Against Torture.

Seven newly released memos  from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

That is Marjorie Cohn’s take on Alternet.  She concludes

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

President Obama is probably smart to not lead the charge, but to let Congress and the natural course of events to dictate prosecution.  He and Eric Holder should just continue to mine the archives and release information.  I have to believe that prosecutions will happen in the natural course of events. 

Meanwhile over at the blog RedState, the most recent post is Warner Todd Hudson’s Fist [sic] Kill the Lawyers  in which he rants about a Boston Globe story about lawyers getting laid off.  (Why anyone would rejoice at anyone being laid off, I’m not sure but that is for a different discussion.)  Hudson concludes

So, I rejoice at the troubles seen by Boston’s legal eagles and I hope their discomfiture is felt in every city of the land. I further hope that many of them find useful work in some furniture store or perhaps a nice Taco Bell somewhere. At least they’d finally be serving the public instead of milking them dry.

Anyway, let’s not kill all the lawyers in literal fashion. But let’s encourage them to seek a new profession, shall we?

Can we start with Yoo and Bybee?

The Current State of Baseball and Illegal Drugs

It is no secret to people who know me or anyone who follows this blog and has read my occasional baseball posts but I love baseball.  I follow certain basketball teams but I really don’t watch unless one of them is playing.  Baseball on the other hand, particularly live baseball is a love.  If it is live, I can watch any two teams at any level play.  I think I like the game so much because it one one of the things that my grandfather who spoke little English and I could watch in common.

This spring training 2009, what is the state of baseball.  Well, I think that the use of steroids is down.  George Vescey writes in the New York Times in his column titled “The Incredible Shrinking Baseball Player.”

Baseball clubhouses seem to be getting bigger this spring, with more room to move around. Or maybe the players are becoming smaller.

Out of the roughly 1,000 major leaguers in spring training camps, a couple of dozen appear to have lost significant weight in the off-season, all in the name of health and agility.

Some of them did it by eating grilled fish. Others played active video games with their children. Some went on diet programs or took up yoga. Others cut back on alcohol. Whatever they did, clubhouse attendants are coming up with smaller uniforms all over Florida and Arizona.

Whether or not it is because they are no longer using steroids or because, like many of us non ballplayers, they are discovering a healthier lifestyle, Vescey can’t say.  But he has his suspicions.

“You have to be a little skeptical, given the context of watching bodies change,” Dr. Gary Wadler, an internist and member of the World Anti-Doping Agency, said Thursday. “The explanation then was that they were eating more and working out more. Now if you hear players say, ‘We changed our ways,’ all you can do is be suspicious.”

But the weight loss can be good.

The model for clean living and technique over brute size is Derek Jeter of the Yankees, whose physique and hitting style have never fluctuated since he came up in 1995. Jeter seemed to be quietly seething last week when having to discuss revelations of steroid use by Alex Rodriguez. Not all of us did it, Jeter veritably hissed. That is an important fact to remember as players assert their inner athlete.

Baseball players did not necessarily need all the bulk they were sporting in the last generation, said Dr. Michael Joyner, deputy director and vice dean for research at the Mayo Clinic, an expert in exercise physiology.

“I think it’s better to say people were going in the easier direction,” Dr. Joyner said, referring to past weight gain. “Athletes are supercompetitive. Many of them are almost sociopaths in almost a friendly way,” he added, saying that players would compete in anything, including body mass.

Dr. Joyner recalled the power of a small hitter like Jim Wynn and a slender pitcher like Ron Guidry, of the 1960s and 1970s. He also praised the immortal lefty Sandy Koufax and the four-time Olympic discus champion, Al Oerter, who combined athletic ability and technique.

Still, thin just may be in. This minitrend has been labeled the Pedroia Effect by Greg Lalas, retired soccer player and writer for He was referring to the 5-foot-9-inch, 180-pound second baseman with the Red Sox who hit .326 with 17 home runs last year and was named most valuable player in his league.

I knew I’d get a reference to a member of the Red Sox in there someplace.

But the big story, at least in my mind, is the tie between the Barry Bonds trial for perjury and the tactics of the Bush Justice Department.  Who knew that all those questionable tactics would come home to roost in the trial of a baseball player for using steroids?

David Zirin writing in The Nation and also appearing of the Rachel Maddow show makes this connection.  His story “The US v. Barry Bonds” begins

This is a story about garbage. There’s the actual garbage overzealous federal investigators examined in their efforts to prosecute a surly sports celebrity. There’s the shredding of the Bill of Rights, crudely ignored by the government in the name of obsession and ambition. Finally, there’s the thorough trashing of people’s reputations, not to mention the game of baseball. Welcome to The US v. Barry Bonds; please disregard the stench.

The embodiment of this obsession was IRS agent Jeff Novitzky. He broke open the BALCO case after spending a great deal of time, to the adulation of the press, literally sifting through garbage and sewage.

Novitzky was given the green light by President Bush and Ashcroft to go for the jugular. In 2004, accompanied by eleven agents, he marched into Comprehensive Drug Testing, the nation’s largest sports-drug testing company. Armed with a warrant to see the confidential drug tests of ten baseball players, he walked out with 4,000 supposedly sealed medical files, including every baseball player in the major leagues. As Jon Pessah wrote in ESPN magazine, “Three federal judges reviewed the raid. One asked, incredulously, if the Fourth Amendment had been repealed. Another, Susan Illston, who has presided over the BALCO trials, called Novitzky’s actions a ‘callous disregard’ for constitutional rights. All three instructed him to return the records. Instead, Novitzky kept the evidence….”

It was a frightening abuse of power, all aimed at imprisoning a prominent African-American athlete. Yet despite the landfills of trash, the government’s case always rested on a flimsy premise. Bonds’s contention under oath was that anything illegal he may have ingested was without prior knowledge. The only person who could contradict Bonds was his trainer and longtime friend Greg Anderson. The government pressed Anderson to give testimony. He refused, citing a promise made by the feds that he wouldn’t have to testify after pleading guilty to steroid distribution and money laundering in 2005. The feds stuck him in jail for thirteen months to soften him up, but he didn’t crack.

We all knew that the Bush Justice Department was completely ignoring the Constitution to keep us safe from terroists, but to convict baseball players who used steroids?  I guess it could be a threat to the American pasttime.

It’s way past time to say enough is enough.

Whether or not you are a Barry Bonds fan, or consider him to be just a step above a seal-clubbing, pitbull-fighting bank executive, every person of good conscience should be aghast at the way the Justice Department has gone about its business. Barry Bonds, Greg Anderson and maybe thousands of others have had their rights trampled on, all for the glory of a perjury case that looks to be going absolutely nowhere. Attorney General Eric Holder and President Obama have strongly indicated that the government is getting out of the steroid monitoring business. That is welcome, but after so many years, so many tax dollars and so many reputations destroyed, it all feels positively Pyrrhic.

You can also watch Dave on the Rachel Maddow Show.

I’m sure that there will be another drug.  And I sure that ball players get through the long season and the travel using the occasional upper, but for now at least healthy living seems to be a trend.