In waning days, Bush officials backpedaled on terror memos

McClatchy NewspapersMarch 2, 2009 

WASHINGTON — In the waning days of the Bush administration, the Justice Department renounced some of its own sweeping legal justifications, which were enacted after the 9/11 attacks, for spying on Americans and for harsh interrogations of terror suspects.

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."

Bradbury said he wrote the 11-page document to confirm that "certain propositions" in memos issued by the Justice Department from 2001 to 2003 "do not reflect the current views of this office."

The memo, unusual for its critique of a current administration's legal opinions, was released by the Justice Department Monday along with eight other previously secret opinions. The disclosures came on the same day that the Obama administration confirmed that CIA officials had previously destroyed 92 tapes of terror suspects, a higher number than previously known. The tapes included interrogations that critics think constituted illegal torture.

In January, the American Civil Liberties Union urged the Obama administration to release dozens of secret Bush Justice Department memos. For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.

Critics see the release of the documents as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various antiterrorism measures, including the use of waterboarding, an interrogation technique that simulates drowning.

Attorney General Eric Holder said Monday that he planned to release as many of the Bush administration's OLC memos and opinions as possible "while still protecting national security information and ensuring robust internal executive branch debate and decision-making."

"Americans deserve a government that operates with transparency and openness," he said.

The memos and opinions released on Monday portray an administration scrambling to determine what it could and could not do in the name of the war on terror.

In the early days after the attacks, the Justice Department gave the president broad authority.

In an Oct. 23, 2001, memo, for example, Justice Department lawyers John Yoo and Robert Delahunty assert that the Fourth Amendment's prohibition of unreasonable search and seizure couldn't be used to restrain domestic military operations.

Jameel Jaffer, the director of the ACLU's National Security Project, said the memo, which the ACLU had been seeking for years, was among the most revelatory of the batch of documents released on Monday. He surmised that it might've provided justification for Bush's warrantless surveillance program.

"It essentially says that war is a blank check for the president not only on foreign battlefields but also inside the United States," he said. "In some ways that memo also succinctly summarizes the administration's national security policies more generally."

However, Bradbury warns administration officials in an Oct. 6, 2008, follow-up memo that "caution should be exercised before relying in any respect" on the assertions.

Although Bradbury noted the "extraordinary — indeed, we hope, a unique — period in the history of the nation," he concluded that several legal arguments in the memo were "either incorrect or highly questionable" and "should not be treated as authoritative for any purpose."

John D. Hutson, dean and president of Franklin Pierce Law Center, said the Yoo memo gave "precious little analysis to even the slightest hint of limitations on the president's power."

"There must be some limits on what the president can do in his role as commander in chief, particularly on American soil," he said. "What if the suspect isn't a terrorist at all, but just some American walking to a mosque in Los Angeles to pray?"

In another newly released memo, the Justice Department concludes the president had the authority to transfer terrorism suspects to other countries despite concerns they could be tortured.

Experts said the March 13, 2002, memo by Jay S. Bybee, then assistant attorney general, likely provided the justification for the Bush administration's rendition of suspects to other countries.

(Margaret Talev and Tish Wells contributed to this article.)

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McClatchy Newspapers 2009

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