11.9.01

January 2009 Justice Dept. Memo from Bush Administration Reverses Its Previous Legal Arguments

In Civil Liberties, Rendition, Torture on March 5, 2009 at 2:28 pm

Five days before Obama is sworn in, the Justice Department from the Bush Administration issued a memo that reversed its long standing arguments regarding international law, treatment of detainees, and other facets of the War on Terror:

In its final days, the George W. Bush administration issued a Justice Department opinion dramatically reversing most of the legal arguments that governed its war on terrorism – from interrogations to electronic surveillance.  On Monday, the Obama Justice Department declassified a Jan. 15 memo from Steven G. Bradbury, the outgoing principal deputy assistant attorney general, repudiating the interpretations of the Office of Legal Counsel from 2001 to 2003 regarding the president’s wartime authorities.

“The opinions addressed herein were issued in the wake of the atrocities of 9/11, when policymakers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the nation,” Mr. Bradbury wrote.

The memo upheld Congress’ right to make binding laws regarding the treatment of suspected terrorists and withdrew “doubtful interpretation” of the Foreign Intelligence Surveillance Act, questioning the obligation of the U.S. government to abide by international agreements on treatment of prisoners of war. In fact, the memo said, the president was obliged to follow international treaties, signed by the United States, prohibiting torture.

It remains unclear why the Bush administration reversed the legal basis for so many of its actions so late in its term.

However, before it left office, the Bush administration had already signaled in congressional testimony and in other memos and opinions that it was moving away from the expansive constitutional interpretations that the president invoked after the Sept. 11 attacks. Not until Jan. 15 had these reversals been stated in one document.

At times, the memo’s tone sounds like a mix between apology and explanation. After the Sept. 11 attacks, attorneys “confronted novel and complex legal questions in a time of great danger and under extraordinary time pressure,” he wrote.

The memo repudiates the assertion that president’s powers as commander in chief “would deny Congress any role in regulating the detention, interrogation, prosecution and transfer of enemy combatants captured in the global War on Terror.”  This view reverses the opinion issued by Jay S. Bybee, then an assistant attorney general, in a March 13, 2002, memo asserting the president’s power to transfer captured terrorists to the control and custody of foreign nations.

On the Foreign Intelligence Surveillance Act, Mr. Bradbury withdrew all memos asserting that the law did not restrict the president’s authority to wiretap suspects inside the United States without a warrant.

Mr. Bradbury also suspended the Nov. 15, 2001, memo from John Yoo, then a deputy chief in the Office of Legal Counsel, asserting that “the president’s power to suspend treaties is wholly discretionary, and may be exercised whenever he determines that it is in the national interest to do so.” While the Office of Legal Counsel had reversed this opinion in 2006, the Jan. 15 memo was more forceful in asserting that the president did not have the power unilaterally to withdraw from a treaty signed with other foreign countries.

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