Wiretaps, Interrogation and the Constitution: Obama Releases Bush Era Justice Department Memoranda

In Civil Liberties, Official History, Torture on March 3, 2009 at 8:15 am

Release of memos from Bush Administration’s War on Terror:

The Obama administration Monday released nine previously secret internal Justice Department memos and opinions defining the legal limits of government power in combating terrorism.  The Bush administration had refused to make the documents public, rejecting demands from congressional Democrats. The release ends a tug-of-war over copies of controversial legal guidance from the post-9/11 period that advocated greatly expanded executive power to combat terrorism.

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Yoo wrote. He said the “Supreme Court has recognized that the government’s compelling interests in wartime justify restrictions on the scope of individual liberty.”

Among the documents from the Justice Department’s Office of Legal Counsel (OLC) is a 2001 memo declaring that in terrorism cases the military may conduct searches in the United States without a warrant if approved by the president.

“We conclude that the president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” wrote John Yoo, then a deputy assistant attorney general. “We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations.” Read the memo

As the debate grew over the Justice Department’s aggressive legal approach to dealing with terrorism suspects, the Bush administration’s views evolved.

In another released memo, the head of the Office of Legal Counsel, Steven Bradbury, in October 2008 warned that “caution should be exercised before relying in any respect on the memorandum” written by Yoo. Bradbury advised the Justice Department that the 2001 memo “should not be treated as authoritative for any purpose.”

Yoo also said wiretaps without court-approved warrants may be needed.

In another memo, written in 2002 by then-Assistant Attorney General Jay Bybee, legal justification was presented to support “extraordinary rendition,” a practice that allowed the U.S. to transfer terror suspects to other countries where torture was allegedly used.

The memo said al Qaeda and Taliban detainees picked up on the Afghanistan battlefield were not entitled to rights granted by either U.S. law or international treaty including the Geneva Conventions, which prohibit torture.

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