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Barr has issued misleading summaries to Congress before.

This [post at Just Security is well-researched and worth reading](https://www.justsecurity.org/63635/barrs-playbook-he-misled-congress-when-omitting-parts-of-justice-dept-memo-in-1989/). I have summarized below, and added important missing context.

# A 1980s political problem: what to do with Noriega?

[Manuel Noriega](https://www.nytimes.com/2017/05/30/world/americas/manuel-antonio-noriega-dead-panama.html) was dictator of Panama – sometimes a cooperative ally/informant for American drug and intelligence agencies, sometimes tipping off drug cartels.

* 1986: U.S. approves resolution calling on Panama to remove Noriega from the Panamanian Defense Forces pending investigation of corruption, election fraud, murder and drug trafficking.
* 1987: Military and economic aid cut off to Panama; their economy contracts by 20 percent.
* 1988: first coup fails.
* 1989: Noriega annuls results of Panama’s presidential election. Second coup fails. Naming himself “maximum leader,” the National Assembly declares war on the U.S. In late December, the U.S. invades Panama (at the time, the largest American military action since the Vietnam War).
* January 3, 1990: Noriega surrenders.

But before America invaded, a different idea was floated: how about we just kidnap Noriega instead? It’s not strictly legal, but… maybe we can get around that.

# The June 21, 1989 Barr memo

In 1989 [news leaked](https://www.latimes.com/archives/la-xpm-1989-10-13-mn-138-story.html) of a legal memo authored by Barr. In the June 21 legal opinion, requested by Attorney General Dick Thornburgh and issued in unusual secrecy, Assistant A.G. Barr concluded the FBI could forcibly abduct people in other countries without the consent of the foreign state. That legal opinion appeared to pave the way for abducting Noriega.

It reversed a Carter Administration ruling that denied the FBI such authority to take unilateral action overseas.

The Chair of the House Judiciary Committee’s subcommittee on civil and constitutional rights [wrote](https://www.justsecurity.org/wp-content/uploads/2019/04/Edwards-letter.pdf) to AG Thornbugh requesting the full legal opinion. Barr refused, but said he ‘d provide an account that “summarizes the principal conclusions.” (This echoes Barr’s March 2019 assurance that he’d “summarize the principal conclusions” of the Mueller report.)

Yale law school professor Harold Koh [wrote](https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2939&context=fss_papers) that Barr’s position was “particularly egregious.”

>*“Barr’s [refusal] 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.”*

Later, when that opinion was finally [made public](https://www.justsecurity.org/wp-content/uploads/2019/04/Authority-of-the-Federal-Bureau-of-Investigation-to-Override-Customary-International-Law-OLC-1989.pdf), it was clear Barr’s summary had **failed to fully disclose** the opinion’s principal conclusions. His [13 pages of written testimony](https://www.justsecurity.org/wp-content/uploads/2019/04/1989-William-Barr-Hearing-FBI-authority-to-seize-suspects-abroad.pdf) omitted some of the most consequential and incendiary conclusions from the actual opinion.

Professor Jeanne Woods, in a 1996 law review article in Boston University International Law Journal, said.

>*“Barr’s congressional testimony attempted to gloss over the broad legal and policy changes that his written opinion advocated.”*

# Barr’s summary to Congress omits three important things

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

The 1989 opinion asserted that the President could violate the United Nations Charter because such actions are “fundamentally political questions.” Barr did not disclose this.

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

The OLC opinion authored by Barr failed to properly apply the “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.

Barr’s opinion **reversed** this presumption, suggesting “in the absence of an explicit restriction” re: international law, the congressional statute should be read to **authorize the executive branch to violate international law**.

**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.”

# Why it matters (TL;DR)

* There was a political issue in the 1980s.
* Barr agreed to write a legal opinion for his boss that reversed past policy and ignored legal precedents.
* When Congress asked to see the full legal opinion, Barr refused, instead “summarizing” in a way that covered up the true intent.
* His summary to Congress was directly misleading, omitting three important things at the core of the issue.
* IMO given Barr’s history, Congress should insist on seeing the unredacted report.

# But what if Barr was correct in his legal opinion? Doesn’t that matter?

I’m not a lawyer, but the point of this post is not the correctness of the legal opinion.

What is worrisome is that it was issued in secret and its intent was covered up. In doing so, Barr denied Congress its right to proper oversight.

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2 thoughts on “Barr has issued misleading summaries to Congress before.

  1. It isn’t his place to be the single judge of the president. It is the place of Congress. This is called checks and balances. Barr was appointed by the president so I am sure he is just a yes man.

    Good write up. It was very informative.

  2. Barr did exactly what Bush needed him to do, which is why Trump hired him again. Noriega had been a CIA asset for decades, and even though Bush himself destroyed most of his notes, it’s pretty clear from Ollie North’s records and the testimony of everyone involved in Iran Contra, that it was well known Noriega was allowing Panama to be a transshipment point for weapons throughout Central America, as well as a money laundering haven. All Bush and Co had to do was turn a blind eye to the fact that Noriega was using CIA planes to bring cocaine and marijuana to the US, which they did until it became politically inconvenient. Just like he did in ’89, Barr is covering up for an entirely criminal administration.

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