DOJ Memos Reveal Legal Thinking Behind Controversial Bush Terrorism Policy

WASHINGTON, March 2, 2009— -- The Justice Department today released nine national security legal opinions written by the Bush administration, and revealed that in the weeks before President George W. Bush left office, an administration attorney had disavowed all of them.

The newly released memos deal with warrantless wire tapping, executive power and the seizure of terrorism suspects, all of which were issues on which the Bush administration received criticism from civil liberties advocates.

On Jan. 15, 2009, Principal Deputy Assistant Attorney General Steven Bradbury wrote a "memorandum for the Files" stating that the opinions were no longer being relied upon and that they were "not consistent with the current views" of the Office of Legal Counsel.

The release of the memos today appears to be a tacit admission that many of the legal findings made by the Justice Department in weeks and months after the terror attacks of Sept. 11, 2001, giving Bush extradordinary executive power, were flawed.

Some of the most broad sweeping memos concern what authority the military has on U.S. soil, which notes that the Fourth Amendment would not apply for domestic military operations and the assertion that the First Amendment, particularly as it applies to freedom of speech and of the press, may have to be "subordinated."

An Oct. 23, 2001, memo titled, "Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States" states that military operations on U.S. soil would not violate the Posse Comitatus Act, since the military would be conducting military operations and would not be operating in a law enforcement capacity.

The Posse Comitatus Act prohibited the use of the military as law enforcement within the United States, "except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress."

The memo also casts aside parts of the Fourth Amendment in its legal analysis.