Bush-era legal memos may point to Obama-era abuses of power

John C. Yoo, former Deputy Assistant
Attorney General, author of post-9/11
legal memos touting an expansive
view of presidential power.

In a move that's both politically fraught and historically important, the Department of Justice has released a series of memos written by the Office of Legal Counsel under the Bush administration that take an expansive -- often shockingly so -- view of presidential power. An accompanying memo written this January, just before President Barack Obama took office, largely repudiates the earlier opinions, allowing the new president an opportunity to distance himself from his controversial predecessor -- an opportunity he appears to be throwing away.

Former Deputy Assistant Attorney General John C. Yoo is often "credited" as a main author of former President Bush's claims that, as president, he could disregard both Congress and the Constitution in pursuing terrorists. In a memo dated June 27, 2002 (PDF), Yoo asserts, "the President's authority to detain enemy combatants, including U.S. citizens, is based on his Constitutional authority as Commander-in-Chief."

First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.
-- Former Deputy Assistant Attorney General John C. Yoo

In a separate memo, dated October 23, 2002 (PDF), Yoo asserted that, in opposing terrorism, the president could act unrestrained by either First Amendment guarantees of free speech or Fourth Amendment protections against unreasonable searches and seizures.

First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. ...

In light of the well-settled understanding that constitutional constraints must give way in some respects to the exigencies of war, we think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks.

Most of the opinions in the memos were public knowledge and subjects of discussion in years past, but seeing them in stark black and white is a reminder of just how far the former administration was willing to go in asserting extraordinary powers on the part of the executive branch so long as the words "war" or "terrorism" were invoked as justifications.

Just as important as the older memos is the January 15, 2009 memo written by Principal Deputy Assistant Attorney General Steven G. Bradbury, largely repudiating many of the legal assertions contained in the earlier documents.

The opinions addressed herein were issued in the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation. ...

Mindful of this extraordinary historical context, we nevertheless believe it appropriate and necessary to confirm that the following propositions contained in the opinions identified below, do not currently reflect, and have not for some years reflected, the views of OLC. ...

For all the foregoing reasons, the propositions highlighted in the nine opinions identified above do not reflect the current views of the Office of Legal Counsel and should not be treated as authoritative for any purpose. A number of the opinions that contained these propositions have been withdrawn or superseded and do not constitute precedents of this Office; caution should be exercised before relying in other respects on the remaining opinions.

Issued just days before Obama's inauguration, the Bradbury memo probably reflects something between a cover-your-ass effort on the part of Bush officials to distance themselves from violations of the Constitution, and a big FU to the incoming administration, yanking away powers that Bush officials had happily used but were now denying to their successors.

As such, it provides a standard by which to judge the new administration. Will President Obama use the memos as an opportunity to contrast himself with post-9/11 abuses? Or will he covet President Bush's power?

So far, the signs are not good. The Obama administration has continued the executive branch's Bush-era assertions of "state secrets" doctrine as a shield behind which to hide government abuses and deny justice to its victims.

The Obama administration is also defying a court order that it produce a classified document in a lawsuit involving surveillance of an Islamic organization. In its brief in the case (PDF), the Department of Justice argues that courts simply don't have the power to order the executive branch to produce classified documents.  (Salon's Glenn Greenwald addresses this issue in-depth.)

In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review.

Right now, the Obama administration appears to be throwing away its opportunity to distance itself from the Bush administration. In the end, the Bush-era memos may prove not just to be historical artifacts, but portents of the future.

email J.D.: civilliberties (at) tuccille.com