The Obama administration has released nine secret legal opinions penned by Bush Administration lawyers, revealing the scope of executive power the White House sought in fighting domestic terrorism.
The opinions reflect an extraordinary interpretation of presidential power used by the Bush White House to justify executive actions (some used, and some not), including use of military force within the US to combat terrorism, wiretapping domestic internet and telephone calls without a warrant, ignoring international treaties, and detaining US citizens suspected of terrorism.
Some of the Bush administration's sweeping claims of executive privileges had been previously known, but the opinions shed new light on the legal grounds which the White House justified giving the president unilateral power over terror suspects.
The memorandums were issued by John Yoo, former deputy assistant attorney general in the Office of Legal Counsel, and Robert Delahunty, a special counsel in the OLC, following the 9/11 attacks.
In one memorandum dated October 23, 2001, the Bush administration lawyers argued that the president could use the nation's military to conduct raids on suspected terrorists within the US and even seize property without needing to demonstrate probable cause or obtaining a search warrant. They argued that the president has "ample" authority to engage the military domestically under the circumstances, and such military force "generally is consistent with Constitutional standards."
"Here, military force would be used against terrorists to prevent them from carrying out further attacks upon American citizens and facilities," the memo states. "This would amount to the exercise of the right of self-defense on a larger, but no less compelling scale. A justification of self-defense therefore would justify the use of force, even deadly force, in counter-terrorism operations domestically."
The memo concludes that Fourth Amendment protections against unreasonable searches and seizures don't apply because the right to self-defense makes the actions reasonable.
The October memo even adds that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
A September 2001 memorandum begins what would become an extended debate on domestic spying by claiming "the president must be able to use whatever means necessary to prevent attacks on the United States; this power, by implication, includes the authority to collect information necessary for its effective exercise." It argues that the 9/11 attacks have expanded the class of reasonable searches under the Fourth Amendment, "thus, some surveillance that might not have satisfied the national security exception for warrentless searches before September 11, might today."
A March 2002 opinion claims that terror detainees can be transferred to countries known to commit human rights violations, so long as US officials didn't specifically intend for them to be tortured.
Upon releasing the documents Monday, the US Department of Justice said many of the memorandums no longer reflected views of the DoJ's Office of Legal Counsel and "should not be treated as authoritative for any purpose." The Obama administration said it published the documents in light of "legitimate and substantial public interest," and in the spirit of the US government working with "transparency and openness."
The American Civil Liberties Union applauded the release of the nine memorandums, but claimed there are still "dozens of still-secret legal memos related to interrogation, detention, rendition, surveillance and other Bush administration policies."
Full copies of the memos are available here in PDF format. ®