Latham & Watkins’ Maureen Mahon­ey took on a major assignment when she agreed to represent Jay Bybee, a federal appellate judge who was accused of violating ethics rules for his work at the U.S. Department of Justice on so-called “torture memos.” Newly released records show just how big the assignment was. . . . Nearly all the assistance, $3,251,893, came from Los Angeles-based Latham, whose lawyers used to appear before Bybee in the courtrooms of the U.S. Court of Appeals for the 9th Circuit.

Its worth noting that Mahoney isn’t just any big corporate law firm attorney, she is a former law clerk to then-Associate Justice William Rehnquist and is widely considered one of the top appellate litigators in the country. Although it is common — and indeed admirable — for attorneys of this caliber to provide pro bono services, those services are typically offered to the genuinely needy and not to powerful government officials who could resign their judgeship and immediately receive a job in private practice earning a high six or seven figure salary.

Also worth noting is the fact that Miguel Estrada, another top right-wing lawyer and former Bush judicial nominee, represented Bybee’s fellow torture apologist John Yoo. As a law professor, Yoo does not have the same obligation Bybee has to disclose gifts, but it is likely that Estrada’s legal services are no less expensive than Mahoney’s, and unlikely that Yoo’s salary as a law professor pays him enough to hire Estrada on his own unless Estrada’s firm made much or all of his services available for free.

To Bybee’s credit, he is currently recusing himself from cases that Latham & Watkins participates in — an example that Justice Clarence Thomas could learn something from. Nevertheless, Mahoney’s willingness to provide hours upon hours of free legal services in order to protect a key player in President Bush’s torture policy is a frightening sign of just how far conservatives are willing to go to protect their own.

The proposed executive order making disclosure of political giving history a condition to being awarded a federal contract makes some of the Nixon-era “dirty tricks” look almost quaint by comparison. [...] As the Supreme Court has made clear, anonymous political speech enjoys “an honorable tradition of advocacy and of dissent,” and anonymity serves as a shield “against the tyranny of the majority.” Any president who seeks to undo this centuries-old American constitutional right by the fiat of an executive order would be prudent to reflect on the ultimate outcome when Richard Nixon and John Dean tried, using their infamous enemies list, to accomplish that precise objective.

If there is anyone in the universe who should think twice before criticizing a government lawyer for enabling a president to break the law, it is John Yoo. And while Yoo certainly spares no adjective in arguing that preserving the integrity of American democracy is an impeachable offense, he might also want to consider actually reading what the Supreme Court has to say about disclosure laws before drafting articles of impeachment against President Obama.

In an obscure case called Citizens United v. FEC, the Supreme Court held that “disclosure could be justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” President Obama’s proposed executive order provides the electorate with information about the sources of election-related spending. So Yoo’s entire argument can be rebutted in exactly two sentences.

Elsewhere in his essay, Yoo comes to the defense of poor, innocent corporations that may lose their ability to deceive their customers and investors:

After disclosure of a contribution by the retailer Target to MN Forward, a conservative Minnesota political group that supported a gubernatorial candidate who was opposed to gay marriage, proponents demanded that Target also support pro-gay candidates. Target refused. MoveOn organized a widespread boycott and flash mobs appeared at Target stores; the retailer countered by suing protesters. In the seconds it took for a Facebook video of the boycott to go viral, Target’s established reputation as a gay-friendly company was shredded. After institutional investors protested the “misalignment” between Target’s Minnesota political spending and its professed corporate values, Target announced that future political contributions would require the approval of an internal policy committee.

In other words, Target misled the public by calling itself a gay-friendly corporation, when it actually was secretly funding an anti-gay effort. Yet, because of disclosure, it was no longer able to maintain this charade and forced to end its two-faced practices. In Yoo’s twisted understanding of the world, this is a great tragedy and not a compelling argument for why disclosure laws are necessary.

Given Yoo’s role in the Bush administration’s torture policy, asking him to express a legal opinion is a bit like asking Don Draper for advice on marital fidelity. Even so, Yoo’s defense of corporate America’s power to secretly buy elections is weak even by his own tragically incompetent standards.

Just as the administration brushed aside the Constitution’s limits on the federal government’s powers over the domestic economy, so too it is ignoring a national security law it believes to be constitutional simply because it stands in the way of Democratic Party goals. [...]

Obama’s indefensible interpretation of the WPR is transparently driven by politics. … These decisions show an administration that treats the law cynically and manipulatively, to achieve purely political ends.

Yoo also wrote an op-ed in the Wall Street Journal last week criticizing House Republicans for not taking a harder line with Obama on the War Powers Resolution.

While Yoo’s position on the Libya action may have some merit, it’s supremely ironic for him to be lecturing anyone about stretching the law for political purposes, as he’s best known for doing exactly that for the Bush administration. Yoo wrote the so-called “torture memos,” which concocted bogus legal theories to justify the use of harsh interrogation techniques that flew in the face of American and international laws. The memos, and Yoo’s subsequent public defense of them, made Yoo the “the most partisan and intellectually dishonest lawyer in the country,” in the words of civil liberties blogger Glenn Greenwald.

Yoo also helped build the dubious legal case for President Bush’s extra-legal warrentless wiretapping program. A 2009 report from the inspectors general of five separate agencies involved in the wiretapping program found that Yoo gave “flawed legal opinions” and led “efforts to circumvent the Foreign Intelligence Surveillance Court” in the name of advancing Bush’s foreign policy agenda.

Yoo never missed an opportunity to advocate for the expansion of Bush’s executive authority, even saying the president could unilaterally authorize “a village…to be massacred” or that Congress could not stop the president from using nuclear weapons.

But while he stridently defended Bush’s authority, Yoo’s tune seems to change when a Democrat inhabits the White House. In fact, his new position criticizing Obama’s executive authority is basically a return to one he espoused under President Clinton, when he repeatedly attacked the Democrat’s “imperial presidency.” Yoo wrote numerous Wall Street Journal columns and contributed a chapter to a book published by the Cato Institute discussing “how Clinton has abused constitutional restraints on his foreign power.” He even suggested that Clinton viewed himself as a “king” above the law.

Indeed, if there’s anyone who knows about “treat[ing] the law cynically and manipulatively, to achieve purely political ends,” it’s John Yoo.

[W]e were told that most of Yoo’s records had been deleted and were not recoverable. [Former Deputy AAG] Philbin’s email records from July 2002 through August 5, 2002 — the time period in which the Bybee Memo was completed and the Classified Bybee Memo (discussed below) was created — had also been deleted and were reportedly not recoverable.

The watchdog group Citizens for Responsibility and Ethics in Washington (CREW) “called on Attorney General Eric Holder to investigate the destruction of emails” and reported that “he destruction of these emails represents a blatant violation of the Federal Records Act (FRA) and may break criminal laws.”

In a Senate Judiciary Committee hearing today, Sen. Patrick Leahy (D-VT) said the deleted records pose “very serious concerns about government transparency and whether the [OPR] had access to all of the information relevant to the inquiries.”

Leahy then asked whether the DOJ has initiated an investigation into the circumstances behind the destruction of the emails. Acting Deputy Attorney General Gary G. Grindler said the DOJ is in the process of trying to establish the facts for why the emails disappeared. Grindler also studiously avoided suggesting that any foul play was behind the disappearance of the emails, stating that there was “nothing nefarious” about the deletions. Leahy then drew a parallel between the Yoo emails and the emails that the Bush White House previously claimed had disappeared:

I recall when millions of emails mysteriously disappeared during the Bush administration, and I had [said] they don’t just disappear. They must be there. And I recall them sending their press secretary Ms. Perino out to say, ‘what is he some kind of IT expert? That’s foolish, they’ve been deleted. They’ve disappeared. We all know they’ve disappeared. Why would anyone suggest otherwise.’ And then we found 22 million emails. [...]

During the firing of the U.S. Attorneys…there were a number of emails by Mr. Karl Rove and others in the White House that were missing. Now, two months ago, we finally find those emails of course after the investigation was over and after the time when the U.S. Attorneys might have been reinstated. I hope we don’t have to wait that long this time.

Watch it:

Newsweek reports that the National Archives is pressing the Justice Department to investigate the “possible unauthorized destruction of e-mail and other records” within the Justice Department’s Office of Legal Counsel.

Today, Yoo doubled-down on this statement in an interview with San Francisco radio station KQED. After the host asked him if he stands by his prior support of Presidential massacres, Yoo raised the stakes to endorse the President’s unilateral authority to use nuclear weapons: 

Look at the bombing of Hiroshima and Nagasaki. … Could Congress tell President Truman that he couldn’t use a nuclear bomb in Japan, even though Truman thought in good faith he was saving millions of Americans and Japanese lives? … My only point is that the government places those decisions in the President, and if the Congress doesn’t like it they can cut off funds for it or they can impeach him.

Listen here:

First of all, Yoo’s claim that Congress could cut off funds for a nuclear attack or impeach the President after he makes the decision to launch nuclear weapons does little to prevent a nuclear attack. Even assuming that a supermajority of senators supported taking swift action against a rogue President, the fact that Congress subsequently cut of funding for nuclear launches or removed the President from office would be little comfort to the tens of thousands of people already killed in the attack. Yoo’s solution amounts to shutting the barn door long after the horse has fled.

More importantly, Yoo misrepresents the law. As far back as 1804, a unanimous Supreme Court held in Little v. Barreme that Congress has sweeping authority to limit the President’s actions in wartime. That case involved an Act of Congress authorizing vessels to seize cargo ships bound for French ports. After the President also authorized vessels to seize ships headed away from French ports, the Supreme Court held this authorization unconstitutional on the grounds that Congress’ decision to allow one kind of seizure implicitly forbade other kinds of seizure. More recently, in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court held that the President does not have the power to unilaterally set military policy (in those cases with respect to detention); he must comply with statutory limits on his power. Taken together, these and other cases unquestionably establish that Congress has the power to tell the President “no,” and the President must listen.

John Yoo is a moral vacuum, but he is also a constitutional law professor at one of the nation’s top law schools and a former Supreme Court clerk. It is simply impossible that Yoo is not aware of Little, Hamdi and Hamdan, or that he does not understand what they say. So when John Yoo claims that the President is not bound by Congressional limits, he is not simply ignorant or misunderstanding the law. He is lying.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors — Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor — violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action — which, in Bybee’s case, could have led to an impeachment inquiry.

A DOJ official said that Margolis “acted without input” from Attorney General Eric Holder. Emptywheel has more.

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

Cheney cited a DoJ memo co-authored by John Yoo which claimed that “the president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States.” Siding with Condoleezza Rice, FBI Director Robert Mueller, and others, Bush rejected Cheney’s advice and “ended up ordering the F.B.I. to make the arrests.”

In the Wall Street Journal today, Yoo responded to the report, claiming that the inspectors general are ignoring history and are simply “responding to the media-stoked politics of recrimination.” But in his attack on the report, Yoo neither responded to the specific criticisms of his legal reasoning nor mentioned that he refused to cooperate with the investigation.

Instead, Yoo persisted in pushing the flaws in his legal argument, such as the claim that the Foreign Intelligence Surveillance Act did not take war into consideration:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. … In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency.

But the IG report stated:

Yoo wrote that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid such a reading.”

Yoo’s analysis of this point would later raise serious concerns for other officials in OLC and the Office of the Deputy Attorney General (ODAG) in late 2003 and early 2004. Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 U.S.C. § 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance during wartime.

In his op-ed, Yoo also argued that “the 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar,” but that it doesn’t apply in the case of Bush’s warrantless wiretapping program. Yoo never mentioned, however, that he neglected to make that argument in his legal memos supporting the program:

Yoo’s legal memoranda omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and Legislative Branches. Justice Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions on the legality of the PSP.

Finally, though he mentioned that IG report covers “‘other’ intelligence measures” that he signed off on, Yoo never addressed the charge that his “discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” which led former Attorney General John Ashcroft to conclude that he had “been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.”

The government had asked Judge Jeffrey S. White of Federal District Court in San Francisco to dismiss the case filed by Jose Padilla, an American citizen who spent more than three years in a military brig as an enemy combatant. Judge White denied most elements of Mr. Yoo’s motion and quoted a passage from the Federalist Papers that in times of war, nations, to be more safe, “at length become willing to run the risk of being less free.”

Constitutional law professor Jonathan Turley has said that Yoo’s memos “provide the very definition of tyranny.”

John Yoo has written freelance commentaries for The Inquirer since 2005, however he entered into a contract to write a monthly column in late 2008. I won’t discuss the compensation of anyone who writes for us. Of course, we know more about Mr. Yoo’s actions in the Justice Department now than we did at the time we contracted him. But we did not blindly enter into our agreement. He’s a Philadelphian, and very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11. That has promoted further discourse, which is the objective of newspaper commentary.

Bunch responds: “The higher calling for an American newspaper should be promoting and maintaining our sometimes fragile democracy, the very thing that Yoo and his band of torture advocates very nearly shredded in a few short years. Quite simply, by handing Yoo a regularly scheduled platform for his viewpoint, the Inquirer is telling its readers that Yoo’s ideas — especially that torture is not a crime against the very essence of America — are acceptable.”

Spanish law allows courts to reach beyond national borders in cases of torture or war crimes under a doctrine of universal justice, though the government has recently said it hopes to limit the scope of the legal process. [...]

Human rights lawyers brought the case before leading anti-terror judge Baltasar Garzon, who agreed to send it on to prosecutors to decide whether it had merit, Gonzalo Boye, one of the lawyers who brought the charges, told The Associated Press. [...]

The judge’s decision to send the case against the American officials to prosecutors means it will proceed, at least for now. Prosecutors must now decide whether to recommend a full-blown investigation, though Garzon is not bound by their decision.

– “I was taken out of my cell and one of the interrogators wrapped a towel around my neck; they then used it to swing me around and smash me repeatedly against the hard walls of the room.”

– “Both my feet became very swollen after one month of almost continual standing.”

– “A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall.

The report’s conclusion reads: “The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture.” Previously, the Bush administration had attempted to conceal harsh treatment from the Red Cross.

QUESTION: Is there anything you would have done differently?

YOO: These memos I wrote were not for public consumption. They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don’t think I would have made the basic decisions differently.

Later in the interview, Yoo told the Register that he doesn’t worry about his legacy because he has “the time to write books” defending himself. Asked about the Justice Department’s current inquieries into the legality of his work, Yoo remarked, “I wish they weren’t doing it, but I understand why they are.”

In perhaps the most surprising assertion, the Oct. 23, 2001, memo suggested the president could even suspend press freedoms if he concluded it was necessary to wage the war on terror. “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Yoo wrote in the memo entitled “Authority for Use of Military Force to Combat Terrorist Activity Within the United States.”

“Freedom of speech is integral to a free society,” President Bush said in May 2008. After reading the memos, Harpers’ Scott Horton wrote, “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship.”