Commentary: Bush memos shine light on post-9-11 history

This editorial appeared in The Miami Herald.

Even those who believe that presidents must enjoy broad authority to deal with national security threats should be taken aback by the newly released Justice Department memos from the early years of the Bush administration. Among other things, the memos confer on the chief executive virtually unlimited powers to deploy the military in domestic operations, discarding fundamental constitutional protections that most Americans consider a birthright.

To say that some of these memos indulge in tortured reasoning to reach their novel conclusions is an understatement. An opinion authorizing the military to operate domestically, for example, would blithely set aside the need to obtain search warrants in going after "terrorist cells." The writers said any objections based on the Fourth Amendment's ban on unreasonable searches would be of little consequence because the search would probably result in the use of "deadly force," and the matter of injury would override privacy concerns.

Other traditional freedoms do not fare well either under the opinions written in 2001 after the 9-11 attacks, wholly or in part, by John Yoo, a former official in the Office of Legal Counsel. An Oct. 23 memo said that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

Granted, the commander-in-chief must have extraordinary power in times of war. But under Mr. Yoo and some of his colleagues, the war against terrorism became a pretext to give the president powers that bordered on tyranny. They would fundamentally alter constitutional checks and balances. As a whole, they suggest the writers were not so much at war with terrorists as with the Bill of Rights and American legal traditions of due process and civil liberties.

To read the complete editorial, visit The Miami Herald.