I’ve been busy today and not had more than a moment to peek at the Office of Legal Counsel memos released today that I posted about earlier. Jason Leopold has looked them over and tells us what he found. Obviously they were kept hidden because it would embarass the Bush administration to have us know that they had received legal opinions that essentially lifted the Constitution for the duration of the “War on Terror,” a war that was framed in such a way that it might never end:
Yoo Memo Said Bush Could Limit Freedom of Speech During Wartime
By Jason Leopold
Two days before a Senate committee launches hearings to determine how best to investigate Bush-era terror policies, the Department of Justice publicly released nine previously secret and highly controversial legal opinions written by former agency attorney John Yoo that gave unfettered and unchecked powers to George W. Bush in the aftermath of 9/11.
The most controversial of the batch is arguably an Oct. 23, 2001 memorandum entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” that concluded, “that the Fourth Amendment had no application to domestic military operations.”
The Fourth Amendment to the U.S. Constitution 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 existence of the memo was first revealed last year when the American Civil Liberties Union obtained yet another secret memo drafted by Yoo about interrogation techniques in which he footnoted the Oct. 23, 2001 opinion.
Until now, the memo has remained a closely held secret that the Bush administration kept even from the House Judiciary Committee which requested the document on numerous occasions last year.
The memo said Bush had the legal authority to order searches and seizures without warrants against individuals believed 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,” says the Oct. 23, 2001 memo prepared by Yoo for then White House Counsel Alberto Gonzales and Defense Department attorney William Haynes. “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.”
The memo also said Bush could put restrictions on freedom of the press and freedom of speech in his war against terrorism.
“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.”
Yet three months before Bush exited the White House, one of his Justice Department appointees drafted a “memorandum for the files” that eviscerated Yoo’s Oct. 23, 2001 legal opinion, calling his former colleagues views on suspending first amendment protections “unnecessary” and “overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario.”
The author of the Oct. 6, 2008 memo, Stephen Bradbury, was formerly the head of the Office of Legal Counsel. His legal work, along with Yoo’s, was the subject of an investigation by a Justice Department watchdog. It’s unclear what prompted Bradbury to draft the memo. He wrote last year that Yoo’s Oct. 23, 2001 legal opinion “states several specific propositions that are either incorrect or highly questionable.”
Bradbury attempts 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.
Yet that is precisely what Yoo did.
Bradbury identifies five controversial points contained in Yoo’s Oct. 23, 2001 memo and wrote “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.”In releasing the memos, 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.”
Hours before his agency released the secret memos, Attorney General Eric Holder, in a speech before the Jewish Council of Public Affairs in Washington, D.C., said, “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.”
Indeed. A memo Yoo wrote two weeks after 9/11 discussed ways the administration could spy on U.S. citizens without obtaining warrants from a secret court.
A March 13, 2002 memo written by Jay Bybee, the former assistant attorney general for the DOJ’s Office of Legal Counsel, 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’s memo said a 1998 law that prohibited the U.S. 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. His legal advice to the White House while working at the Department of Justice was scrutinized by DOJ watchdog in a still classified report completed last year.
In an April 8, 2002 memo, the OLC 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.
Jameel Jaffer, the the director of the American Civil Liberties Union’s National Security Project, said the memos released Monday show “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.”
Senate Judiciary Committee Chairman Patrick Leahy, who will convene a hearing 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.”
The legal opinions are:
- Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (01-15-2009)
- Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the “Purpose” Standard for Searches (09-25-2001)
- Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States (10-23-2001)
- Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty (11-15-2001)
- Memorandum Regarding the President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002)
- Memorandum Regarding Swift Justice Authorization Act (04-08-2002)
- Memorandum Regarding Determination of Enemy Belligerency and Military Detention (06-08-2002)
- Memorandum Regarding Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (06-27-2002)
- Memorandum Regarding October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (10-06-2008)
March 2nd, 2009