Lawyers for George W. Bush’s Justice Department asserted that the President had unlimited powers to prosecute the “war on terror” on American soil and could ignore constitutional rights, including First Amendment freedoms of speech and the press and Fourth Amendment requirements for search warrants, according to nine secret memos just released.
The memos related to opinions drafted by John Yoo, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel, a powerful agency that advises the President on the extent of his powers under the Constitution.
In perhaps the most controversial of the memos, dated Oct. 23, 2001, and entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” Yoo said Bush’s war powers allowed him to put restrictions on freedom of the press and freedom of speech.
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Yoo wrote. "The current campaign against terrorism may require even broader exercises of federal power domestically."
The memo concluded that "that the Fourth Amendment had no application to domestic military operations.” The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”
The memo said Bush had the legal authority to order searches and seizures without warrants against individuals that he judged to be terrorists.
"We do not think a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant," said the memo, which was prepared by Yoo for then-White House Counsel Alberto Gonzales and Defense Department attorney William Haynes. Another OLC attorney, Robert Delahunty, was identified as a co-author of the memo.
"We think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks."
In effect, the newly released memos make clear that – as some critics have long maintained – President Bush viewed his post 9/11 powers as Commander in Chief as “plenary” or unfettered.
What made the “war on terror” especially problematic in a constitutional Republic was that the conflict had no limits in time or space. In other words, theoretically, the conflict would go on forever and the supposed front lines could be inside the United States as well as around the world.
Just three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the Oct. 23, 2001, legal opinion in a “memorandum for the files” that called Yoo’s opinion about suspending First Amendment protections as “unnecessary” and "overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario."
In an Oct. 6, 2008, memo, Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
The Oct. 23, 2001, “memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law,” Bradbury wrote.
Bradbury identified five controversial points contained in Yoo’s Oct. 23, 2001, memo and wrote that “appropriate caution should be exercised before relying in any respect on the memorandum as a precedent of OLC, and that the particular propositions identified should not be treated as authoritative.”
It was unclear what prompted Bradbury to draft the memo to the file, although his work along with Yoo’s and that of Yoo’s boss, Jay Bybee, was the subject of an internal Justice Department investigation by the Office of Professional Responsibility, which completed its still-classified report late last year.
Bradbury wrote another memo five days before Bush left office in January in which he once again repudiated Yoo's legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not "satisfy" professional standards.
Rather, Bradbury wrote "in the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation."
Another of the released memos – dated March 13, 2002 and signed by Bybee, then assistant attorney general at the OLC – said Bush had the authority to transfer suspected terrorists to other countries without concern for whether they would be tortured.
Bybee's memo was written one month after Bush suspended Geneva Conventions protections for al-Qaeda and Taliban prisoners.
“Although such transfers might violate our treaty obligations if extradition is to a country where torture is likely... To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured," Bybee wrote.
"So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer even if the foreign country receiving the detainee does torture him," Bybee wrote.
Bybee's memo said a 1998 law that prohibited the United States from handing over prisoners to countries that engaged in torture was not valid because it interfered with the President's constitutional powers. Bybee is now a federal judge on the 9th Circuit Court of Appeals in San Francisco.
Another OLC memo dated April 8, 2002, said Bush did not need approval from Congress to hold military commissions to prosecute alleged terrorists.
However, the Supreme Court shot down that theory and declared military commissions illegal because Congress did not explicitly approve them. Congress did pass the Military Commissions Act in 2006 to prosecute detainees held at Guantanamo Bay.
In releasing the memos on Monday, Attorney General Eric Holder said "Americans deserve a government that operates with transparency and openness. It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."
In a speech before the Jewish Council of Public Affairs in Washington, Holder said that "too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that school of thought misguided, I fear that in actuality it does more harm than good."
Jameel Jaffer, the director of the American Civil Liberties Union’s National Security Project, said the memos released Monday “essentially argue that the President has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.”
“We hope today’s release is a first step, because dozens of other OLC memos, including memos that provided the basis for the Bush administration's torture and warrantless wiretapping policies, are still being withheld,” said Jaffer, whose organization has tried to obtain the memos under the Freedom of Information Act.
“In order to truly turn the page on a lawless era, these memos should be released immediately,” he said.
Senate Judiciary Committee Chairman Patrick Leahy, who plans a hearing on Wednesday to discuss the formation of a “truth commission” to probe the Bush administration’s policies, said the newly released legal opinions “regarding national security remain of great concern.”
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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This story was published on March 3, 2009.