Memos gave Bush overriding powers

The Obama administration Monday made public a series of long-secret Bush administration legal memos that set out an extraordinarily broad interpretation of presidential power for use in the war on terrorism.

One 2001 opinion concluded that the military could seize suspects in the U.S. like members of an invading foreign army who lacked constitutional rights.

The memos provide a detailed glimpse into the thinking of President Bush’s Justice Department legal advisors at a time of national emergency.

They embraced the view that the president, acting alone, had the authority to override the other branches of government on a broad range of issues.

The Justice Department’s Office of Legal Counsel, in a memo written six weeks after the Sept. 11, 2001, terrorist attacks, would have allowed U.S. troops to search houses and seize suspected terrorists without a court-approved warrant. The Pentagon never used that power, although it considered it, according to a former Bush administration lawyer.


In the immediate aftermath of the attacks, Justice Department lawyers also said the military’s need to go after terrorists in the U.S. could override constitutional protections guaranteeing the right to free speech.

By then, the memos showed, the Bush administration was already discussing ways to wiretap U.S. conversations without warrants, and to take other steps without the traditional oversight of Congress and the courts.

Another memo said the president could unilaterally abrogate treaties with other nations.

The just-released memos also showed that five days before Bush left office, the Justice Department issued a secret but remarkable retraction of some of these same sweeping definitions of presidential authority.

In a Jan. 15 “memorandum for the files,” Principal Deputy Assistant Atty. Gen. Steven G. 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The Justice Department had secretly withdrawn some of its more controversial legal memos years earlier, Bradbury added, “and on several occasions we have already acknowledged the doubtful nature of these propositions.”

The memos released Monday go well beyond what was known about the Bush administration’s assertion of presidential power.

The Oct. 23, 2001, memo on the use of the military in the U.S. was written by then-Deputy Assistant Atty. Gen. John C. Yoo -- now a visiting professor at Chapman University School of Law in Orange -- and Special Counsel Robert J. Delahunty.

Yoo did not return calls seeking comment, and Bradbury declined to comment.

“These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law,” they wrote.

But they said the president, as commander in chief in a time of war, had the right to authorize such extraordinary actions to protect the American public.

“The current campaign against terrorism may require even broader exercises of federal power domestically,” Yoo and Delahunty added.

For several years, the Bush administration and its Justice Department have come under intense criticism for writing other legal memos pertaining to the war on terrorism.

Some of those legal opinions held that the administration did not need to abide by laws requiring court approval of wiretaps, while others provided legal cover for coercive interrogation techniques that many critics considered to be torture.

Obama and his attorney general, Eric H. Holder Jr., have vowed to release other still-secret Bush legal memos as soon as possible.

In a speech earlier in the day, Holder 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,” he said.

The Justice Department posted the nine newly declassified legal opinions and memos on its website Monday.

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.”

Jameel Jaffer, director of the ACLU’s National Security Project, said the Bush administration memos “essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.”

The memos written by Yoo and others reflected the belief by the Bush administration that the traditional legal interpretations were inadequate for fighting terrorism.

“In retrospect, some of those judgments may not have been the best ones to make,” said one Defense Department official, who added: “People want to criticize the thinking in 2001, but we thought we were going to get attacked again.”

The October 2001 memo “gave rise to the Justice Department discussing with the Defense Department whether the military could be used to arrest people and detain people inside the United States,” a former Bush administration lawyer said. “That was considered but rejected on at least one occasion.”

The officials asked not to be named because the debate over using the military to detain people inside the U.S. was secret.

Under the proposal, the suspects would have been held by the military as “enemy combatants.” The proposal was opposed by the Justice Department’s criminal division and other government lawyers and was ultimately rejected, and the suspects were arrested under criminal statutes, the lawyer said.

The memos released Monday are “just the tip of the iceberg” in terms of what the Bush administration authorized, the lawyer said.

In his January memo on why the earlier opinions had been reversed, at least in part, Bradbury said the opinions departed from normal Office of Legal Counsel practice, searching for expansive answers in the response to terrorism when more limited legal reasoning might have been more appropriate.

“In the months following 9/11, attorneys in the Office of Legal Counsel and in the intelligence community confronted novel and complex legal questions in a time of great danger and under extraordinary time pressure,” Bradbury wrote.


Greg Miller and David Savage of the Washington bureau contributed to this report.