New US administration vows to make public more documents in the interests of transparency, writes JOSH MEYERand JULIAN BARNESin Washington
THE OBAMA administration has made public a series of long-secret legal memos setting out an extraordinarily broad interpretation of presidential power that was used by the Bush White House to justify its actions in the war on terror. These include one 2001 opinion concluding that the military could treat suspected terrorists in the United States like members of an invading foreign army who lacked constitutional rights.
The memos, released on Monday, provide a detailed glimpse into the thinking of President Bush’s justice department legal advisers at a time of national emergency. Together, they embraced the view that the president, acting alone, had the authority to override the other branches of government on a range of issues.
The justice department’s office of legal counsel, in a memo written in 2001 six weeks after 9/11 terrorist attacks, would have allowed US soldiers to search houses and seize suspected terrorists without a court-approved warrant.
The Pentagon 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 inside the US, he said.
In the immediate aftermath of the attacks on New York and Washington, the justice department lawyers also said the military’s need to go after terrorists in the US might override constitutional protections guaranteeing the right to free speech. And by then, the memos showed, the Bush administration was discussing ways to wiretap US conversations without warrants and to take other steps without the traditional oversight of Congress and the courts.
The memos also showed that five days before leaving office, the Bush justice department issued a secret but remarkable retraction of some sweeping definitions of presidential authority that its own lawyers had authored, instead of leaving it for the incoming Obama administration to do so as it had promised.
In a January 15th “Memorandum For The Files”, principal deputy assistant attorney general Steven Bradbury said many of the office of legal counsel opinions issued between 2001 and 2003 no longer reflected the views of the justice department and “should not be treated as authoritative for any purpose”.
The memo and another one disclosed on Monday further explained that other Bush-era justice department opinions had been withdrawn or superseded, and that “caution should be exercised” by the executive branch “before relying in other respects” on some additional opinions that had not been superseded or withdrawn.
The October 23rd, 2001, memo authorising the use of the military in the US argued that although constitutionally problematic, the president, as commander-in-chief in such a time of war, had the right to authorise such extraordinary actions to protect the public.
“The current campaign against terrorism may require even broader exercises of federal power domestically,” it added cryptically.
Obama and his attorney general Eric Holder have vowed to release other still-secret Bush legal memos as soon as possible. “Americans deserve a government that operates with transparency and openness,” Holder said.
In a public speech earlier in the day, he said he understood the need to protect Americans from terrorist attacks. “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.”
American Civil Liberties Union officials hailed the release of the documents, but said the Obama administration needed to release "at the earliest possible date, dozens of still-secret legal memos related to interrogation, detention, rendition, surveillance and other Bush administration policies that are still being withheld." – ( LA Times-Washington Postservice)