By R. Jeffrey Smith and Dan Eggen
March 3, 2009
Those policies were based on at least 10 legal opinions conferring broad powers on the president that the Justice Department later deemed flawed and ordered withdrawn, including several approving the military's search, detention or trial of civilians in the United States without congressional input, according to the documents.
While the Bush administration had previously acknowledged rescinding two of those memos -- authorizing the infliction of pain and suffering on detainees and claiming unquestioned authority to interrogate suspects outside the United States -- the government's eventual repudiation or rewrite of the eight other early legal memos was secret until now.
In one of the newly disclosed opinions, Justice Department appointee John Yoo argued that constitutional provisions ensuring free speech and barring warrantless searches could be disregarded by the president in wartime, allowing troops to storm a building if they suspected terrorists might be inside. In another, the department asserted that detainees could be transferred to countries known to commit human rights abuses so long as U.S. officials did not intentionally seek their torture.
The opinions were initially drafted -- and later repudiated at least in part -- by the Justice Department's storied Office of Legal Counsel, which issues interpretations of laws and presidential authorities considered binding on the entire executive branch. The multiple policy shifts during Bush's two presidential terms reflect an unprecedented degree of turmoil in that office, experts say.
In releasing some of the discredited memos, including three that the Bush administration had argued must be kept secret as recently as November, Attorney General Eric H. Holder Jr. declared that
The new batch of opinions does not include any repudiated by the Obama administration or reflect a government shift on the underlying legal issues since Bush's departure. They also do not include the most controversial memos that Democratic lawmakers and human rights experts have been asking to see for several years, including those justifying the CIA's use of harsh interrogation techniques and the National Security Agency's program to surveil certain Americans without warrants.
But the new administration's swift release of seven of the discredited opinions, as well as an official summary of why they were withdrawn, drew praise yesterday from Capitol Hill and human rights activists. Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said the collection begins
The defects in most of the early opinions were summarized in a document titled "Memorandum for the Files" and signed by Steven G. Bradbury, who served as the acting head of the legal counsel's office for the Bush administration's last three years without being confirmed by the Senate. Bradbury dated the memo five days before Obama's inauguration and said its purpose was to "confirm that certain propositions" asserted previously by the office were no longer supported. He said key national security officials had already been advised of the change of heart but did not say when.
Bradbury explained the defective legal opinions were issued
Yoo's previously secret 37-page memo asserting that the president could authorize a broad use of military force to combat terrorist activities inside the United States was completed six weeks after the terrorist attacks. In it, Yoo said any terrorists in the United States could be treated like an invading army, justifying warrantless searches and the subordination of free speech and press rights if needed to "wage war successfully."
Jameel Jaffer, head of the American Civil Liberties Union's national security project, yesterday called this "a quite astounding proposition."
Nearly seven years later, on Oct. 6, 2008, Bradbury declared that the memo contained several "propositions that are either incorrect or highly questionable." He said that in fact, the Fourth Amendment prohibition against warrantless search and seizure was "fully applicable to domestic military operations" and called the claims about ignoring free speech and press rights "overbroad" and "not sufficiently grounded."
Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, said the documents taken together "read like a how-to document on how to evade the rule of law." Daskal said she was particularly troubled by a March 2002 memo from Yoo arguing there were few restrictions on transferring prisoners to a third country, regardless of whether the country had a record of abuse. Yoo emphasized in the memo that transfers were okay if no explicit or implicit agreement was made to torture.
Staff researcher Julie Tate contributed to this report.
By MARISA TAYLOR
In a memo written five days before President Barack Obama took office, Steven Bradbury, the then-principal deputy assistant attorney general, warned that a series of opinions issued secretly by the Justice Department's Office of Legal Counsel "should not be treated as authoritative for any purpose." ...