cryptogon.com

The memos provide a detailed glimpse into the thinking of Bush’s Justice Department legal advisers. They embraced the view that President George W. Bush, acting alone, had the authority to override the other branches of government.

That legal rationale by the Justice Department’s Office of Legal Counsel, in a memo written six weeks after the Sept. 11, 2001, terrorist attacks, would have meant that U.S. soldiers could search houses and seize suspected terrorists without a court-approved warrant. The military never used that power, according to a former Bush administration lawyer, but the memo was the legal basis for some in the administration who wanted to use the military, instead of law-enforcement agencies, to arrest Al Qaeda suspects in the U.S., he said.

The memos disclosed Monday also said the military’s need to go after terrorists in the United States might override constitutional protections guaranteeing the right to free speech. One of the legal opinions set the stage for the Guantanamo Bay prison policy by asserting Bush had “the exclusive authority” to decide how prisoners would be detained. The Bush administration had refused to make any of the memos public.

The memos also show that five days before leaving office, the Bush Justice Department issued a secret retraction of some of the most sweeping definitions of presidential authority that its own lawyers had authored.

In a Jan. 15 “Memorandum For The Files,” Principal Deputy Assistant Atty. Gen. Steven G. Bradbury said many of the Office of Legal Counsel opinions issued between 2001 and 2003 no longer reflected views of the Justice Department.

The Justice Department had secretly withdrawn other controversial legal memorandums years earlier, Bradbury added, “and on several occasions we have already acknowledged the doubtful nature of these propositions.” But the memos released Monday go well beyond what was known about the assertion of presidential power.

An Oct. 23, 2001, memo authorizing use of the military in the U.S. was written by then-Deputy Assistant Atty. Gen. John Yoo—now a law professor at the University of California Berkeley—and Special Counsel Robert Delahunty. Yoo did not return calls for comment, and Bradbury declined to comment.

“These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law,” they said. But, they said, the president, as commander in chief in a time of war, had the right to authorize such extraordinary actions. After the Sept. 11 attacks, the memos showed that the Bush administration was already discussing ways to wiretap conversations in the U.S. without warrants, and to take other steps without oversight of Congress and the courts.

“The current campaign against terrorism may require even broader exercises of federal power domestically,” Yoo and Delahunty said in their October 2001 memo.

President Barack Obama and Atty. Gen. Eric Holder have vowed to release other still-secret Bush legal memos as soon as possible.

In a speech Monday, Holder said he understood the need to protect America from terrorism. “But we must do so in a manner that preserves, protects and defends the rights that are enshrined in our Constitution, and the rule of law itself.”