DOJ Memos Reveal Legal Thinking Behind Controversial Bush Terrorism Policy

Legal guidance gave president extraordinary power, military domestic authority.

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.

"The Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks," the memo said.

The memo also notes: "The Fourth Amendment was aimed primarily at curbing law enforcement abuses. ... In our view, however well suited the warrant and probable cause requirements may be as applied to criminal investigation or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy.

"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," the memo says. "The current campaign against terrorism may require even broadened exercises of federal power domestically. Terrorists operate within the continental United States itself and escape detection by concealing themselves within the domestic society and economy."

The memos were, in part, revoked on the legal analysis by Bradbury, who wrote in his Jan. 15, 2009, memo in the final days of the Bush administration: "The purpose of the memorandum is to confirm that certain propositions stated in several opinions issued by the Office of Legal Counsel in 2001-2003, respecting the allocation of authorities between the president and Congress in matters of war and national security, do not reflect the current views of this office."

In the 11-page memo, Bradbury explained that many of the opinions had been written "in the wake of the atrocities of 9/11," but that they departed from the usual practice of the office by addressing "broad contours of legal issues" instead of targeting specific and concrete policy proposals.

Jameel Jaffeer, director of the American Civil Liberties Union's National Security Project, praised the release of the memos, but said he was troubled by what they revealed.

"The story is that the OLC argued that neither the Bill of Rights nor congressionally enacted statutes bind the president during war time, not on foreign battlefields and not on U.S. soil," Jaffeer said.