Tuesday, March 03, 2009

Bush OLC Memos Released

The Obama administration decided to release the DOJ OLC memos relating to the war on terror that the Bush administration had previously fought to keep secret. Unsurprisingly, the nine memos claim vast and sweeping powers on the part of the President to deal with any matter related to terrorism. Essentially, the memos claim, so long as the President was taking action to fight terrorism, he could literally not be constrained by the Cosntitution in any meaningful and substantial way. Neil Lewis of the NY Times focuses on one memo in particular, dealing with the deployment of the military within the United States:

The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.

The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.

The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.

Those aren't the only clams advanced by the Bush administration in those early days:

In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.

Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.

The Bush administration also claimed the authority to curtail the First Amendment, stating plainly in one memo that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Reaction to these memos has been predictable. Scott Horton, referring first to the surveillance memo:

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.

Orin Kerr, on the surveillance memo:

If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.

If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.

I suppose it's harder to ignore Congressional intent when Congress essentially says "No, we really did mean what we said there" but it seems odd to me to introduce new legislation in response to a twisted interpretation by the executive of already existing law.

Steven Schwin, on the detainees memo:

There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

Emphasis mine. Justice Jackson's opinion in Youngstown isn't even mentioned. (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)

And finally, Jack Balkin with the summary:

...two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

Most interestingly, we learn that the OLC repudiated these early claims in a memo written by Steven Bradbury in the waning days of the Bush administration. In fact, Bradbury insists that many of these memos were never relied upon, that they were in fact "hypothetical." Which to me sounds like no more than a last-ditch and pathetic effort to avoid accountability at either the hands of historians or the hands of Obama DOJ investigators for actions taken in reliance upon the egregious claims of executive authority put forth in these memos. 

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