In the weeks before leaving his post, a senior Justice Department official issued two memorandums, disowning a host of controversial legal propositions made by the Office of Legal Counsel in the aftermath of the Sept. 11, 2001, attacks.
The memorandums, by Steven Bradbury, who left as acting head of the office in January, were made public Monday along with several OLC opinions on subjects ranging from military detention of U.S. citizens to the practice of rendition. Here’s the link to a page on the Justice Department’s Web site, which in turn provides links to each memo and opinion.
Much of the information has emerged piecemeal in congressional hearings, news reports, and tell-alls, such as Jack Goldsmith's "The Terror Presidency," but Monday's document dump provided additional insight into the office’s evolution since 9/11.
In a memorandum dated Oct. 23 of last year, Bradbury repudiated a 2001 OLC opinion -- co-authored by then-Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty -- addressing the domestic use of military force to combat terrorism.
The opinion, among other things, reasoned that the Fourth Amendment would not apply to domestic military actions meant to prevent terrorist attacks; that the domestic deployment of armed forces would serve a military rather than a law enforcement purpose; that the Authorization for Use of Military Force would override statutory restrictions on the use of the military for domestic law enforcement purposes; and that First Amendment speech and press rights “would potentially be subordinated to overriding military necessities.”
Bradbury prefaced his criticism, saying that the opinion “was the product of an extraordinary -- indeed, we hope, unique -- period of history of the nation.” Still, the opinion “should not be treated as authoritative for any purpose,” Bradbury wrote.
In another memorandum dated Jan. 15 of this year, Bradbury wrote that several opinions issued in 2001 and 2002 “relied upon a doubtful interpretation” of the Foreign Intelligence Surveillance Act and were withdrawn or replaced by later opinions. He cautioned that one existing opinion, written by Yoo in 2002, contains a “problematic and questionable” assertion that FISA does not include a clear statement that Congress intended the law to apply to the president’s exercise of his constitutional authority. (In fact, it does -- expressly, Bradbury pointed out.)
Bradbury's memorandums recant portions of eight OLC opinions issued from 2001 to 2003 and shed light on the Bush administration's broad interpretation of executive power as it restructured the nation's national security operations in the wake of 9/11. Officials had previously acknowledged rescinding two opinions involving detainee interrogations, one of which equated torture with organ failure, impairment of bodily function, or even death. Attorney General Eric Holder Jr. said he released the other documents in light of "legitimate and substantial public interest."
"Americans deserve a government that operates with transparency and openness," Holder said in a statement. "It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."
Bradbury pointed to five OLC opinions issued in 2002 and 2003 that include a legal proposition since discarded by the Supreme Court: that the president’s commander-in-chief power denies Congress any role in regulating the detention, interrogation, prosecution, or transfer of enemy combatants.
Bradbury went on to cut down two other opinions issued in 2001 and 2002, which held that the president has “unconstrained discretion” to suspend treaty obligations. Bradbury called that assertion flatly “unconvincing.”
He also disclaimed Yoo’s reasoning in 2001 opinion in which he wrote that, if deadly force is reasonable under the Fourth Amendment in self-defense or to protect others, then “it certainly would also justify warrantless searches.” The opinion, Bradbury wrote, “inappropriately conflates the Fourth Amendment analysis for government searches with that for the use of deadly force.”
Congressional leaders praised Holder for partially lifting the veil, but others urged more transparency.
"Finally, today, some of these long secret opinions from the Office of Legal Counsel are being publicly released," said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in a statement.
In an e-mailed statement, Jameel Jaffer, director of the American Civil Liberties Union National Security Project, said he hoped today's memos were a "first step, because dozens of other OLC memos, including memos that provided the basis for the Bush administration's torture and warrantless wiretapping policies, are still being withheld."