Dear President Obama:
I never received a reply to my application for a position in the Office of Legal Counsel ("OLC"), but it occurs to me that events of the past couple of weeks offer me an opportunity to renew my interest. After the document dump of February 22 showing that John Yoo and his then-supervisor Jay Bybee were being spared even so much as professional discipline for the "torture memos" condoning torture in all but designation, on the grounds that Yoo's writing the memos constituted merely "poor judgment," I think it's clear that an attorney who is willing to generate any sort of argument to buttress the President's position is an extremely valuable commodity. And I, I am happy to inform you, have "poor judgment" to spare!
You may need to take some extraordinary measures in your Presidency -- and you'll need someone to justify them. Mr. President: I'm your man!
Among the main problems the country faces right now are (1) the deficit, (2) the skyrocketing inequality among the social classes (in which one must not include corporations among the "rich"), (3) the fact that all of that excess money can now be used even more effectively to help conservatives buy political office, and (4) that Congress isn't inclined to do much about it. Let's face it, sir: just as with torture -- what the bush-CHENEY White House called "enhanced interrogation techniques" -- some of the strongest policy responses may have to take place in secret. (After all, we didn't open up the secrets of Abu Ghraib and Guantanamo to the public immediately or all at once, right?)
So, we're going to need to get a lot of money from wealthy people and corporations, and we're going to have to do it largely secretly, and we're going to have to do it without those whom we target making a public fuss about it. Sounds difficult, doesn't it? You'll need some good advice to make it happen. So, Mr. President, I hereby offer you an introduction to my justification of what I call:
"enhanced expropriation techniques".
You are likely to find, as you consider various means to extract money from the wealthy without Congressional approval, that many members of your Administration will argue that some of the proposed courses of action are "unauthorized" or "illegal" or "unconstitutional." Never fear, Mr. President: getting you past such obstacles is my profession -- and my passion. It's true that I can't promise you that whatever analysis I propose to you will stand up over the long term -- but it doesn't need to. We just have to get past the point where you've done what you wanted to do. Now, like Oliver North or Scooter Libby, I might be willing to not quite have to go to prison for engaging in what some might call wrongdoing. But I'd much rather be able, once my time in government service is through (unless like John Poindexter I come bobbing up again one day!), to take the federal judgeship or elite law professor position that a man who does the sort of service to his nation as I propose to do so richly deserves.
I don't want to get too deeply into the details here -- before I've even been hired, after all -- of how I propose to take tremendous amounts of money from Americans of both the brain-bearing and articles-of-incorporation-bearing species. Suffice it to say that I've learned quite a bit from watching Republicans all these years. Your path will involve classified Presidential Orders, classified National Security Findings, and what some may consider to be an extremely broad reading of statutes like the USA PATRIOT Act.
OK, I'll give you this much as a freebie: remember that under U.S. law, anyone who helps a terrorist becomes a terrorist. That means that anyone who helps that person likewise becomes a terrorist. It doesn't take too many degrees of separation until we can hook pretty much anyone we want to on charges of terrorism -- and then we can settle the claim for cash. Are you worried that they will go to court? Don't worry -- we can borrow Patriot Act provisions that prevent them from talking about their case at all, and I'm sure that there are others requiring filings solely under seal. Does something leak out anyway? Mr. President, the Republicans have taught us that we can purchase any number of journalists, on the government's dime, to prove that the story isn't there and that they people making these charges are Satanist Stalinist Anarcho-Syndicalists. (That reminds me, by the way, that I have also not received a reply to my application to serve as a speechwriter.)
Now, am I correct in my reading of the law above? Here's the beautiful thing, Mr. President: from your perspective, it doesn't matter. The only thing that matters is whether I as an attorney within OLC, really believe it. That's what David Margolis, the "watchdog" (heh-heh) of OPR who spiked the OLC determination that Yoo and Bybee had violated professional standards, determined. All that matters is my state of mind, and my writing previous to my being hired -- such as the very letter you are now reading -- demonstrates that I truly believe in my own arguments, even though I recognize that many (and possible all) other legal scholars would disagree with me. (The knaves! The fools!)
Now, suppose for a moment that I am nutty as a pecan pie. Does this mean that you are liable for hiring me? Nope -- you have a free hand when it comes to hiring, even hiring based entirely on ideology. Do you see how well the system works, Mr. President. I give you total carte blanche to act as you will, within the limits of what I say is legal, so long as I truly believe it. And I do, Mr. President. I believe anything I put my mind to believing -- and no one can stop me.
You may have some other concerns, you being a constitutional scholar and all, like "what about the Takings Clause in the Fifth Amendment?" I won't give everything away until I'm sitting in my spiffy federal office, Mr. President, but I will remind you of the Federal Torts Claims Act. Now, I'm basing my analysis here just on the Wikipedia article, but that is sufficient grounding for my advice because I really believe it. Remember, the baseline is that the U.S. government cannot be sued because of "sovereign immunity" -- the old principle that one cannot sue the King -- that William Rehnquist blew up to gigantic size during his years on the Supreme Court.
The FTCA gives the government the ability to waive immunity and accept a lawsuit when an individual who committed an action would be liable. But you don't have to do waive immunity! We'll just send all of those lawsuits down the chute to the dump! I note that the discretion to reject a suit by using FTCA excludes acts involving assault, battery, and false imprisonment -- some intriguing techniques I'll address in my broader memo -- but you'll note that this applies only when the acts are "committed by federal law enforcement officers." Ha! How easy is that to get around? Again, the Bush Administration has shown us the way: we'll federalize the National Guard, use private contractors to shake people down -- just brush that concern off. Not convinced? OK, I'll say the magic words: "I truly believe that you can dismiss that concern." And ... we're golden!
I look forward to the day when historians and journalists (if they know what's good for them) recognize that enhanced expropriation techniques have helped to pave the way to a better America and a better world. And I will be more than pleased to recognize that it will have been my own contribution -- based on my own willingness to interpret the law as I think appropriate even when everyone else thinks that I'm somewhere between grossly irresponsible and totally nuts -- that will have allowed it to happen.
I look forward to doing this service for your Administration and our country, Mr. President. And, for my being able to do so, we must thank George W. Bush, Dick Cheney, Jay Bybee, John Yoo -- and now, putting the cherry on the sundae -- David Margolies as well. Without all of them, you could only rely on legal advice that is reasonable. And I ask you: is that reasonable?
Yours in the service of enhanced-interrogation-techniqued logic,
S. Doane, Esq.