Nel's New Day

April 16, 2019

Bill Barr’s History May Show Future Position

On the day of the 1989 “Black Friday” market crash, almost exactly 30 years ago, a legal memo by then head of DOJ’s office of Legal Counsel Bill Barr was leaked to the media. Issued in “unusual secrecy,” the missive determined that the FBI could forcibly abduct people in other countries with no consent from those countries. A newspaper headline indicated that Barr could use his personal decision to abduct Panama’s leader, Gen. Manuel Noriega. When Congress requested the full legal opinion, Barr refused. He promised to provide them a statement that “summarizes the principal conclusions,” the same term he used for the Mueller report.

Barr’s action began 20 years earlier, in 1979, when the U.S. signed a treaty to turn over control of the Panama Canal zone to Panama. In 1989, the U.S. government wanted to get rid of Panama’s leader, Noriega. As DOJ’s head legal counsel, Barr was told to find a legal way to go into a sovereign country, dispose its leader, kidnap him, and bring him to the U.S. to stand trial. Barr followed orders and then tried to hide how he had accomplished the task by claiming that it was based on the entire DOJ legal opinion from the department’s study.

Because his “legal opinion” was so flimsy, Barr couldn’t release his opinion’s principal conclusions. Instead, he gave Congress 13 pages of written testimony with quotes from court cases, legal citations, and language excerpted from the full opinion. The memo, however, left out substantial and provocative conclusions from the full opinion with no justifiable reason for blocking the information from Congress.

Initially, Barr refused to discuss the opinion’s content that reversed a previous opinion from his office that had been released four years earlier. A reporter asked President George H.W. Bush, “The FBI can go into Panama now?” H.W. said he was “embarrassed” about his not knowing about Barr’s memo and promised to get back to the reporter. Secretary of State James Baker soon tried to cover for H.W. by a false claim:

“This is a very narrow legal opinion based on consideration only of domestic United States law. It did not take into account international law, nor did it weigh the President’s constitutional responsibility to carry out the foreign policy of the United States.”

An assistant AG told Rep. Don Edwards, chair of the House Judiciary Committee’s subcommittee on civil and constitutional rights, that “current legal advice by the Office of Legal Counsel is confidential.” With her response, however, she reversed her statement by noting that the DOJ had released the 1980 opinion to the public in 1985. Later Barr himself testified to Congress that the DOJ has no prohibition on the release of his memo.

Barr’s response to the congressional request for his 1989 memo, was like his treatment of the Mueller report thus far. He first falsely avowed the history of Internal Justice Department rules as a basis for his refusal. Edwards pointed out the 1980 memo precedent so Barr shifted his position from his testimony and letter sent to Edwards, claiming that “it has been the long established policy of OLC that except in very exceptional circumstances, the opinions must remain confidential.” Historical examination shows that Barr was mistaken—or lied. When Barr referred to his misleading 13-page written testimony, Edwards told him that he had violated House rules by submitting the document only the morning of the hearing instead of the required advance of 48 hours.

The written testimony asserted that domestic law allows a president to authorize FBI actions in foreign countries that violate international law. Yale law school professor Harold Koh explained that, without the full opinion, Congress could not determine whether Barr’s assertion was based on fact, what parts of the earlier opinion were overturned, and whether his full opinion contained nuances, subtleties, or exceptions that Barr’s testimony didn’t include. Barr’s testimony did indeed skip parts of his opinion, that Ryan Goodman described, “would have earned the Justice Department scorn from the halls of Congress, legal experts, and the public.”

Congress received the 1989 Barr opinion 21 months later after waiting a year and a half to issue a subpoena. But that was after the U.S. had invaded Panama, captured Noriega, and brought him back to the U.S. for a trial.

Award-winning investigative journalist Michael Isikoff gave this analysis of Barr’s full opinion:

Omission 1: President’s authority to violate the UN Charter

Barr’s opinion stated that a president could violate the United Nations Charter because such actions are “fundamentally political questions.” Barr was wrong. He ignored a president’s constitutional duty to “take care” that U.S. laws, including ratified treaties, be faithfully executed. He also combined this political question issue—whether courts can review an action taken by the executive branch—and the question of whether this action is legal or authorized. Professor Jeanne Woods wrote: “Barr’s congressional testimony attempted to gloss over the broad legal and policy changes that his written opinion advocated.… A careful analysis of the published opinion, and the reasoning underlying it, however, reveals the depth of its deviation from accepted norms.”

Omission 2: Presumption that acts of Congress comply with international law

Woods wrote that Barr failed to correctly apply the so-called “Charming Betsy” method when interpreting statutes. In the 1804 decision, Murray v. The Schooner Charming Betsy, the Supreme Court ruled that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Even more, in a “reverse Charming Betsy” Barr asserted that “in the absence of an explicit restriction” concerning international law, the congressional statute must be interpreted as authorizing the executive branch to violate international law. He wrote that Congress has to grant the right to a president to break international law “because, as part of his law enforcement powers, the President has the inherent authority to override customary international law.” It’s a false analogy based on a false assertion.

Omission 3: International law on abductions in foreign countries

Barr’s testimony about his opinion didn’t even mention international law. He claimed that the full memo “is strictly a legal analysis of the FBI’s authority, as a matter of domestic law, to conduct extraterritorial arrests of individuals for violations of U.S. law.” His State Department legal adviser sidekick reinforced Barr’s testimony by claiming:

“Mr. Barr has summarized its conclusions for you. As Mr. Barr has indicated, that opinion addressed a narrow question-the domestic legal authority to make such arrests…. My role today is to address issues not discussed in the OLC opinion — the international law and foreign policy implications of a nonconsensual arrest in a foreign country.”

The full memo, however, included international law and the way that the UN Charter—a specific treaty—could apply. The 1980 memo, which Barr reversed, opposed abductions in other countries without their consent. It quoted a condemnation of Israel’s abduction of Adolf Eichmann in Argentina as an example of prohibition by Article 2(4) of the UN Charter. Barr said the opposite of the 1980 DOJ memo. Barr also used personal “logic” in the memo instead of legality:

“Because sovereignty over territory derives not from the possession of legal title, but from the reality of effective control, logic would suggest there would be no violation of international law in exercising law enforcement activity in foreign territory over which no state exercises effective control.”

These pieces are a few of those uncovered in Congress after it subpoenaed the full opinion. By that time, however, Barr had become deputy AG on his way to being peacefully confirmed for AG. He said that the constitution didn’t permit abortion, that Roe v. Wade was wrong decided, and then Sen. Joe Biden (D-DE), now considering a run for president, praised his honesty. At about the same time, Biden helped put Clarence Thomas on the Supreme Court for perpetuity. Not long after becoming AG, Barr helped H.W. pardon indicted and convicted officials from the Iran-Contra Affair to protect H.W. from being investigated about his own illegal conduct.

Almost 30 years later, Barr told Congress that he would “summarize the principal conclusions” of the Robert Mueller’s report for the public. He can obfuscate and hide information in Muller’s report. If that doesn’t work, Barr can help with more pardons to hide illegal actions by Dictator Donald Trump (DDT). And as a bonus, Barr can authorize the FBI to arrest the head of any country DDT wishes—like Venezuela maybe? It’s a pattern for Barr.

The vote to confirm followed party lines except for one Republican, Sen. Rand Paul (KY), who voted against confirmation and three Democrats—Doug Jones (AL), Joe Manchin (WY), and Kyrsten Sinema (AZ) voting for confirmation. Barr violated the Posse Comitatus Act that requires congressional approval for using military for law enforcement. Thanks to his confirmation, the nation may be subjected to his approach of doing whatever he wants and then claiming that what’s done is done. [In the above photo, Bill Barr may be demonstrating how much he will let the public see of Mueller’s report.]

With the release of the heavily-redacted Mueller report less than two days away, White House staffers are suffering a “breakdown-level anxiety” among cooperating staff who fear “the wrath” of Dictator Donald Trump (DDT) and his allies. Look for a whole new level of fury in DDT’s tweets.

 

1 Comment »

  1. Perfect graphic. As well as your words.

    Like

    Comment by Lee Lynch — April 18, 2019 @ 10:29 PM | Reply


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