Barr’s Playbook: He Misled Congress When Omitting Parts of Justice Dep’t Memo in 1989

On Friday the thirteenth October 1989, by happenstance the same day as the “Black Friday” market crash, news leaked of a legal memo authored by William Barr. He was then serving as head of the Justice Department’s Office of Legal Counsel (OLC). It is highly uncommon for any OLC memo to make headlines. This one did because it was issued in “unusual secrecy” and concluded that the FBI could forcibly abduct people in other countries without the consent of the foreign state. The headline also noted the implication of the legal opinion at that moment in time. It appeared to pave the way for abducting Panama’s leader, Gen. Manuel Noriega.

Members of Congress asked to see the full legal opinion. Barr refused, but said he would provide an account that “summarizes the principal conclusions.” Sound familiar? In March 2019, when Attorney General Barr was handed Robert Mueller’s final report, he wrote that he would “summarize the principal conclusions” of the special counsel’s report for the public.

When Barr withheld the full OLC opinion in 1989 and said to trust his summary of the principal conclusions, Yale law school professor Harold Koh wrote that Barr’s position was “particularly egregious.” Congress also had no appetite for Barr’s stance, and eventually issued a subpoena to successfully wrench the full OLC opinion out of the Department.

What’s different from that struggle and the current struggle over the Mueller report is that we know how the one in 1989 eventually turned out.

When the OLC opinion was finally made public long after Barr left office, it was clear that Barr’s summary had failed to fully disclose the opinion’s principal conclusions. It is better to think of Barr’s summary as a redacted version of the full OLC opinion. That’s because the “summary” took the form of 13 pages of written testimony. The document was replete with quotations from court cases, legal citations, and the language of the OLC opinion itself. Despite its highly detailed analysis, this 13-page version omitted some of the most consequential and incendiary conclusions from the actual opinion. And there was evidently no justifiable reason for having withheld those parts from Congress or the public.

Public and Congressional pressure mounts

When first asked by reporters about the OLC opinion that Friday, Barr said he could not discuss any of its contents. “I just don’t discuss the work of the office of legal counsel,” he said. “The office … provides legal advice throughout the Administration and does it on a confidential basis.”

The idea that Barr and the administration would not even discuss the content of the opinion could not withstand public pressure. Barr’s stance was especially untenable because his OLC opinion reversed a prior OLC opinion (an unusual event), and the Justice Department had released that prior opinion in full to the public just four years earlier.

President George H.W. Bush was asked about the Barr legal opinion at a news conference on the day the story broke. “The FBI can go into Panama now?,” a reporter asked in connection with the legal opinion. Bush responded that he was “embarrassed” not to know about the OLC opinion. “I’ll have to get back to you with the answer,” the president said.

Within hours, Secretary of State James Baker tried to make some reassuring public comments about the content of the OLC opinion. “This is a very narrow legal opinion based on consideration only of domestic United States law.” Baker said. “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.”

It’s not known whether Baker had first cleared his statement with the Justice Department as is often the case for such matters. But his description of the OLC opinion would turn out to be not just misleading, but false.

The Chair of the House Judiciary Committee’s subcommittee on civil and constitutional rights, Rep. Don Edwards, then wrote to the Attorney General requesting the opinion, but he was rebuffed. An assistant attorney general wrote back. “We are unable to provide you with a copy of the 1989 opinion because it is the established view of the Department of Justice that current legal advice by the Office of Legal Counsel is confidential,” she stated. But there was no categorical prohibition, as Barr himself would later admit in testifying before Congress. The assistant attorney general’s letter itself included one glaring counterexample. “I am enclosing a copy of the 1980 opinion,” she wrote, and she noted that the Department had released the 1980 opinion to the public in 1985.

So why not release the 1989 opinion? Was there something to hide?

Barr provides a “redacted opinion” to Congress

On the morning of Nov. 8, 1989, Barr came to Congress to testify before Rep. Edwards’ subcommittee. Some of the events that unfolded also bear a remarkable resemblance to Barr’s handling of the Mueller report to date.

First, Barr started out by saying that the history of internal Justice Department rules was a basis for not handing over the full opinion to Congress. “Chairman. Since its inception, the Office of Legal Counsel’s opinions have been treated as confidential,” Barr said.

That statement was misleading or false, and Chairman Edwards knew it.

Edwards quickly pointed out that the Department had released a compendium of opinions for the general public, including the 1980 one that Barr’s secret opinion reversed. “Up until 1985 you published them, and I have it in front of me—‘Opinions of the Office of Legal Counsel’—the previous opinion.”

Barr retreated. “It has been the long established policy of OLC that except in very exceptional circumstances, the opinions must remain confidential,” Barr replied. The reference to “very exceptional circumstances” backtracked from what Barr had just said and what the letter sent to Rep. Edwards by the assistant attorney general had claimed.

But even the assertion that OLC opinions were released only in “very exceptional circumstances” could not withstand scrutiny. The Justice Department had shared OLC opinions with Congress on many occasions during the 1980s, as a letter by Rep. Edwards to the Justice Department later detailed.

Barr then pointed out his willingness to provide Congress with “our conclusions and our reasoning.” This was the 13-page written testimony which contained a detailed recounting of the views expressed in the OLC opinion. Chairman Edwards complained that Barr had violated the rules of the House by submitting his written testimony only that same morning of the hearing, rather than 48 hours in advance. Barr’s timing meant that members of the committee and their staff were not well equipped to analyze or question the OLC’s analysis. But at least they had the OLC’s views in writing. Or did they?

Barr’s description of the OLC’s views included that as a matter of domestic law the President has the authority to authorize actions by the FBI in foreign countries in violation of customary international law.

Without the benefit of the OLC opinion, Professor Koh explained how Barr could be hiding important matters by asking Congress and the public to trust just the 13-page version. Koh wrote:

Barr’s continuing refusal to release the 1989 opinion left outsiders with no way to tell whether it rested on factual assumptions that did not apply to the earlier situation, which part of the earlier opinion had not been overruled, or whether the overruling opinion contained nuances, subtleties, or exceptions that Barr’s summary in testimony simply omitted.”

Koh’s words proved prescient.

What Barr left out of his report to Congress

I am not the first to notice that Barr’s testimony omitted parts of the OLC opinion that would have earned the Justice Department scorn from the halls of Congress, legal experts, and the public.

Over one and a half years after his testimony, Congress finally subpoenaed Barr’s 1989 opinion. Another House Judiciary subcommittee issued the subpoena on July 25, 1991. The administration first resisted, but within a week agreed that members of Congress could see the full opinion. That same month, the Washington Post’s Michael Isikoff obtained a copy of the OLC opinion. The Clinton administration, within its first year in office, then published the OLC opinion in 1993 making it publicly available for the first time.

Omission 1: President’s authority to violate the U.N. Charter

Isikoff was drawn to a major issue that Barr had not disclosed in his testimony. The 1989 opinion asserted that the President could violate the United Nations Charter because such actions are “fundamentally political questions.”

That proposition is a very difficult one to sustain, and as Brian Finucane and Marty Lederman have explained, Barr was wrong. The 1989 opinion ignored the President’s constitutional duty to “take care” that US laws, including ratified treaties, be faithfully executed. And the opinion conflated the so-called political question doctrine, which is about whether courts can review an executive branch action, with the question whether an executive branch action is authorized or legal.

What’s more important for our purposes is not whether the 1989 opinion was wrong on this central point, but the fact that Barr failed to disclose this “principal conclusion” to Congress.

There was a reason Isikoff considered the conclusion about the U.N. Charter newsworthy. That’s because it had not been known before. The leading analysis of the Barr opinion is in a forthcoming article in Cornell Law Review by Finucane. He observes, “The members of the subcommittee appear to have been unaware of the opinion’s treatment of the U.N. Charter and the witnesses did not volunteer this information during the hearing.”

Professor Jeanne Woods, in a 1996 law review article in Boston University International Law Journal, also observed the large discrepancy between Barr’s 13-page testimony and what it failed to disclose. “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,” Professor Woods wrote.

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

Woods also noted that the OLC opinion failed to properly apply the so-called “Charming Betsy” method for interpreting statutes. That canon of statutory construction comes from an 1804 decision, Murray v. The Schooner Charming Betsy, in which the Supreme Court stated, “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” In other words, Congress should be presumed to authorize only actions that are consistent with U.S. obligations under international law. As Professor Curtis Bradley has written, since 1804 “this canon of construction has become an important component of the legal regime defining the U.S. relationship with international law. It is applied regularly by the Supreme Court and lower federal courts, and it is enshrined in the black-letter-law provisions of the influential Restatement (Third) of the Foreign Relations Law of the United States.”

Barr’s opinion not only failed to apply the Charming Betsy presumption in favor of international law; the opinion applied what might be called a “reverse Charming Betsy.” Barr had reasoned that “in the absence of an explicit restriction” concerning international law, the congressional statute should be read to authorize the executive branch to violate international law. “Because, as part of his law enforcement powers, the President has the inherent authority to override customary international law, it must be presumed that Congress intended to grant the President’s instrumentality the authority to act in contravention of international law when directed to do so,” the opinion stated (emphasis added).

That part of the OLC’s analysis has not withstood the test of time. Indeed, there was good reason to keep it buried.

Omission 3: International law on abductions in foreign countries

Finally, Barr’s testimony failed to inform Congress that the 1989 opinion discussed international law.

Barr’s written testimony said that the opinion “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.” During the hearing he added that “the opinion did not address … how specific treaties would apply in a given context.” The State Department’s legal adviser who appeared alongside Barr supported this characterization of the opinion by saying:

“The Office of Legal Counsel, as the office within the Department of Justice responsible for articulating the Executive Branch view of domestic law, recently issued an opinion concerning the FBI’s domestic legal authority to conduct arrests abroad without host country consent. 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.”

But the OLC opinion had addressed some questions of international law and how a specific treaty—the U.N. Charter—might apply in such contexts. The 1980 opinion, which the 1989 one reversed, included strong statements about the international legal prohibition on abductions in other countries without the state’s consent. In analyzing Article 2(4) of the UN Charter, the 1980 opinion quoted from a famous United Nations Security Council resolution which condemned the abduction of Adolf Eichmann in Argentina by Israeli forces. The 1980 OLC opinion stated, “Commentators have construed this action to be a definitive construction of the United Nations Charter as proscribing forcible abduction in the absence of acquiescence by the asylum state.”

The OLC’s 1989 opinion took a very different view. It stated, “The text of Article 2(4) does not prohibit extraterritorial law enforcement activities, and we question whether Article 2(4) should be construed as generally addressing these activities.” The opinion also engaged in what many legal experts would consider controversial if not clearly wrong claims about international law. As one example, the 1989 opinion stated, “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.” The fact that the opinion had to resort to such a claim of “logic,” rather than jurisprudence or the practice and legal views of states, indicated its shallowness.

In fairness to Barr, these statements of international law were not the principal conclusions of the opinion. And, once again, it is not so relevant to our purposes whether these statements of law were wrong. What’s relevant is that Barr represented to Congress in his written and oral testimony that the OLC opinion did not address these legal issues, even though it did.

* * *

In the final analysis, Barr’s efforts in 1989 did not serve the Justice Department well. He had long left government service when the OLC opinion was finally made public. The true content of the opinion, given what Barr told the American people and testified before Congress, remains much to the discredit of the Attorney General.

Invisibilia: Inspired By ‘American Idol,’ Somali TV Show Aimed To Change The World

Once upon a time there was music in Somalia, but then the music started fading out. First one music radio station, then another, then another, until there was almost no music to hear and people started MacGyvering workarounds.

One of the people who came up with a workaround was Xawa Abdi Hassan, a young woman who lived in a village outside Mogadishu.

“We used to use a memory card, fill the memory card with music and listen to it from our phones,” Xawa says. In her house, as she cooked and cleaned, Hassan would sing along with the great Somali singers. But even in this private space she says she was careful. “I used to turn the volume down low, so no one could hear it.”

The problem was al-Shabab, the Islamic extremist group that dominated large parts of the country. Al-Shabab didn’t like music. In 2009 it banned music at weddings, banished musical ringtones and starting punishing people who listened to music on their mobile phones by making them swallow their memory cards.

Eventually the musicians themselves were targeted. The famous soloist Aden Hasan Salad was shot and killed in a tea shop, and others were murdered in the street.

Through all of that, Xawa Abdi Hassan kept listening and practicing. Because she had a dream: “I just wanted to sing and become an entertainer.”

For most of her life though — because of al-Shabab — this was a pretty far-fetched dream. Then in 2013 an unexpected and interesting opportunity emerged: There was going to be a new reality television show in Somalia, an American Idol-style show with singers competing.

“As soon as I heard about it I knew I wanted to join,” Hassan says.

What she didn’t know — what she couldn’t possibly know — was that this reality show was part of a much larger political plan.

Using reality TV to change the world

The plan was to create a musical reality show that could undermine the power of al-Shabab, or, in the language of the memo distributed to the people involved in the show’s creation, “undercut the messaging and brand appeal of armed extremist groups.”

The United Nations, which was providing the money and support for the show, had concluded that a vivid display of Somali musical culture could serve “as a kind of inoculation against the austerity of Shabab,” Ben Parker told me. Parker was the head of communications for the U.N. in Mogadishu. He says that at this point — 2013 — al-Shabab had finally been pushed out of the capital, Mogadishu. But the situation in Somalia was far from stable. There were still regular attacks, so the new government (which had U.N. backing) needed to prove to Somalis that the power of the extremist group really was fading. This is why, Parker says, a musical reality show that challenged the power of the music-hating group was so appealing.

“The beauty of a reality show is that the form itself achieves some of your goals,” he explains.

After all, not only is there music in a musical reality show, there’s democratic voting and individual expression. So even in its form it communicates to its audience a very different way of being.

This kind of indirect political messaging, Parker told me, is increasingly popular in strategic communications: “Those working in conflict … are less and less convinced of the value of weapons and more and more convinced that other approaches can deliver the dividends.”

You get further with songs than with bombs.

So is he right?

Can a reality show actually change reality?

It turns out this question has been systematically studied.

The tricky science of changing what’s normal

How do people come to see the world around them as normal, an unremarkable fact, the way things are and should be? This is the question that interests Betsy Levy Paluck, a psychologist at Princeton University who studies media and how societies change.

Paluck told me that for a long time people assumed the path to political or cultural change depended on crafting the right argument.

“It was all rhetoric and no poetics,” she says.

But starting in the 1990s, according to Paluck, poetics started gaining ground because psychologists realized that people consumed stories in this qualitatively different way.

“Their defensiveness is disabled. Their counterarguing is at rest.”

What Paluck wanted to understand was whether this difference in how we consumed stories translated into any changes in what we thought and how we behaved. So around 2004 she hooked up with an organization in Rwanda that was creating a new radio soap opera that was trying encourage tolerance between different ethnicities.

And what Paluck found after a year of studying communities in Rwanda randomly assigned to listen to the soap opera was that their exposure had a surprising impact.

“What it boiled down to was that despite the fact that people loved this program, it didn’t change their beliefs,” she says. “But it did change their perceptions of norms, and at the same time it changed their behaviors. Which is why I thought this is something significant.”

Let me repeat that: It didn’t change their beliefs; it changed their behaviors by changing what they considered to be the social norm.

That’s a sobering idea.

“It’s a very uncomfortable thought,” Paluck says. “We like to think that all of our behaviors flow from our convictions, and what we do is a reflection of who we are and what we think. But we’re constantly tuning ourselves to fit in with the social world around us.”

So what this work suggests is that if you change someone’s perception of what constitutes the social norm — as you convince people that the world is safe enough to sing in public even though in actual fact singing in public is incredibly dangerous — then you just might be able to move the needle on the ground.

She took on extremists with her song

Which brings us back to Xawa Abdi Hassan, the young woman who quietly listened to music off a memory card and dreamed of being a singer.

It took her some time to convince her family that it would be OK to compete in the show, called Inspire Somalia. Her mother was afraid that participating would turn her into a target, but ultimately she got permission.

Hassan says when she first took the stage to compete, her hands were shaking, and not just because this could be a big break. There was another reason: Because of al-Shabab, she had never sung in public before.

It was too dangerous.

“That was my first time,” she says. “Before that, I did not sing in public places.”

After Hassan two other contestants had their turns, both men. One had a famous musician father; the second, a man named Mustafa, had composed his own song.

Once they finished came the part of the show supposed to serve as a democracy demonstration: the voting. Ballots were distributed to the audience and judges, and for a minute the room was quiet. In this small conference room in the middle of Mogadishu people bent over their ballots and considered the options before them.

The son of the famous musician.

The girl who practiced at home with the volume turned low.

The boy who wrote his own song.

In that room they consulted their hearts, weighed strengths and weaknesses, then marked the paper in their laps.

It was Mustafa who ended up winning, but Hassan says she was honestly not upset. For her just the act of singing in public for the first time was enough. “I was happy as … like I was born that day.” she told me.

In fact, Hassan is now a bit famous. People occasionally recognize her on the street, and even more important, she’s part of a professional singing group. As al-Shabab remains a force in Somalia, this means she is still at risk. She says she tries not to worry too much but is often spooked when she sees a car slow down when she’s walking. Still, she is committed to keep making music.

“Yes, it is dangerous,” Hassan says. “But if the young person doesn’t stand up for his country and do what’s right, how is he helping his country?”

Which brings us to this question: Did this reality show actually change reality in any way?

It would be impossible to make the case that Somalia is a completely different country now. It isn’t.

But there is at least one undeniable change since 2013. Music is back in the streets. Brought back, slowly and painfully, through a complicated combination of political strategy and personal courage.

A New Climate Tipping Point

Last week, a long-awaited report from the United Nations’ scientific panel on climate change showed that the worst consequences of global warming would occur even sooner than previously thought. Here’s the story behind the findings.

On today’s episode:

  • Coral Davenport, who covers energy and the environment for The New York Times.

  • William D. Nordhaus, who was awarded a Nobel this year for his work on the economics of climate change.

Background reading:

Nikki Haley to Resign as U.S. Ambassador to the United Nations

Ms. Haley said she had been a “lucky girl” to have served in the government and said she was proud of her tenure. She singled out White House officials Jared Kushner and Ivanka Trump, the president’s son-in-law and daughter, for praise.

Ms. Haley was a frequent critic of Mr. Trump during the 2016 campaign and had endorsed two of his primary opponents, Sens. Marco Rubio of Florida and Ted Cruz of Texas.

She clashed with the White House last spring after saying the Trump administration would imminently impose new sanctions against Russia over its support for the regime of President Bashar al-Assad in Syria. When White House officials later said she spoke prematurely, she issued a sharp retort: “With all due respect, I don’t get confused,” she said.

Her resignation sent shock waves through the diplomatic community at the U.N., where she was seen as a fierce advocate for Mr. Trump’s views. The news stunned diplomats and U.N. officials who said they didn’t see it coming.

U.N. officials said that Ms. Haley hadn’t informed Secretary-General António Guterres in advance of her decision to depart.

.. The ambassadorial post has sometimes been a springboard for U.S. ambassadors with higher ambitions.