So what to make of those Bush administration legal memos, formulating counter-terrorism policy, that the Justice Department released yesterday?
The key news seems to be that at least ten of the opinions issued by the department’s Office of Legal Counsel in the early years of the War on Terror — outlining an expansive view of executive power — were later deemed flawed and ordered withdrawn. We had previously known that this had occurred with just two such opinions.
In one memo, John Yoo argued that during wartime, the president could ignore free speech protections and could order warrantless searches. In another, the Bush DOJ claimed that detainees could be sent to countries that commit human rights abuses, as long as the US did not intentionally seek their torture. Five days before Bush left office, both of these opinions and several others were repudiated in a separate “memorandum for the Files” by Stephen Bradbury, then the acting head of the Office of Legal Counsel. That document was also released yesterday.
Other Bush administration memos that were later withdrawn argued that the president could unilaterally abrogate foreign treaties; could ignore guidance from Congress in dealing with terrorist suspects being detained; and could conduct warrantless wiretapping.
Since the release of the memos yesterday, expert opinion has essentially been united in denouncing the opinions.
Walter Dellinger, who ran OLC during the Clinton administration tells the New York Times that the Bradbury memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.”
Jennifer Daskal of Human Rights Watch speaking to the Washington Post, singles out the memo that allowed the administration to send detainees to countries that commit human rights abuses. “That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured,” Daskal said. “The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do.”
Orin Kerr, a law professor at George Washington, focuses on the memo that gave the administration the power to conduct warrantless wiretapping. Writing on the blog The Volokh Conspiracy, Kerr calls the argument that FISA doesn’t apply to national security issues — which appears to be the memo’s argument — “an extremely lame analysis.” He continues: “Much of the point of FISA was to regulate that.”*
And Salon’s Glenn Greenwald is particularly outraged by an opinion arguing that the president can deploy the US military inside the US, directed at both foreign nationals and US citizens. Greenwald calls this “nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.”
If this isn’t the unadorned face of warped authoritarian extremism, what is?
* This paragraph has been corrected from an earlier version which reported incorrectly that the blog post was written by Eugene Volokh.