Bush counterterrorist legal memos released
posted at 8:46 am on March 3, 2009 by Ed Morrissey
Newly-confirmed Attorney General Eric Holder released several previously secret memos written by the Department of Justice’s Office of Legal Counsel during the Bush administration. The memos advised George Bush of his legal range of action, but later had to be rewritten or withdrawn as cooler heads prevailed. The release shows an administration dealing with the crushing responsibility of preventing another catastrophic terrorist attack and dealing with a new type of adversary — and making mistakes along the way:
The number of major legal errors committed by Bush administration lawyers during the formulation of its early counterterrorism policies was far greater than previously known, according to internal Bush administration documents released for the first time by the Justice Department yesterday.
Those policies were based on at least 10 legal opinions conferring broad powers on the president that the Justice Department later deemed flawed and ordered withdrawn, including several approving the military’s search, detention or trial of civilians in the United States without congressional input, according to the documents.
While the Bush administration had previously acknowledged rescinding two of those memos — authorizing the infliction of pain and suffering on detainees and claiming unquestioned authority to interrogate suspects outside the United States — the government’s eventual repudiation or rewrite of the eight other early legal memos was secret until now.
What kind of errors did the Office of Legal Counsel make? Some surprisingly large ones, including a complete misreading of the Fourth Amendment’s history and purpose:
Yoo’s previously secret 37-page memo asserting that the president could authorize a broad use of military force to combat terrorist activities inside the United States was completed six weeks after the terrorist attacks. In it, Yoo said any terrorists in the United States could be treated like an invading army, justifying warrantless searches and the subordination of free speech and press rights if needed to “wage war successfully.”
If that’s indeed what Yoo argued — I have not yet read the memo myself — then he really missed the mark. The founders wrote the Third Amendment specifically to keep government from invading the homes of citizens on the pretext of military necessity. That would presume to give the Fourth Amendment the same context, which is that government needs to follow due process to gain access to private property and not just invade it because they really think they need to do so.
Steven Bradbury agreed during his tenure as acting head of OLC in the second Bush term. He reversed Yoo’s findings, saying that the Fourth Amendment was “fully applicable to military operations”, while perhaps understating the errors on the First Amendment as “overbroad” and “not grounded”. The US has imposed military censors on war correspondents while overseas to protect vital operations, but suppressing domestic free speech apart from press rights sounds like a way to suppress dissent.
Of course, it’s important to point out two things about this part of Yoo’s memo. First, it was drafted in the aftermath of 9/11 and the consensus that we would suffer another catastrophic blow. We had no idea how many al-Qaeda cells had managed to infiltrate the US, and the Bush administration wanted to make sure we found them before they could attack again. Second, none of these plans ever got put into action. The Bush administration may have been told that they could shred the First and Fourth Amendments, but in the end, they didn’t act on that advice.
Context is everything. Yoo forgot that when trying to divine ways to get around the Constitution in the counterterrorist fight. Let’s not forget the context of the times in which these advisory memos got written, and later amended or withdrawn.
Blowback
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Did anyone watch 24 last night? It’s a little on topic.
shick on March 3, 2009 at 10:02 AM
Banana republic, pure and simple.
jeff_from_mpls on March 3, 2009 at 10:03 AM
unclesmrgol on March 3, 2009 at 10:04 AM
What is the point of releasing this? Ideas were kicked around, the bad ones were not implemented.
I’m much more interested in the conversations Rahm Emanuel and Barack Obama are having right now about how they plan to destroy the economy, and destroy our missile defense program (including missile defense for Poland and Czechoslovakia).
Buy Danish on March 3, 2009 at 10:05 AM
WHITE HOUSE MEMO
TO: White House Staff
From: Rahm Emanual
CC:
BCC: George Stephanopoulos, James Carville, Paul Begala
----------------------------------------------------------
Due to the drop in the markets since our administration has been in control, we belive the little people
of America may grow fustrated with the economy. This conditions bring added urgency to our CHANGE
platform. The President as decided that it is more important to change the country to his vision, and
not the vision of the founders, than getting elected in 2012 (note this is not a public talking point).
The President with work with urgency before the 2010 elections to address the following issues:
- Induce the citizens to become entrapped in government run health care. We can control almost 20% of
the economy if we can get universdal health care passed.
- Shrink the military budget down to 3.2% of GDP. The smaller the military the less GOP voters there
will be in the future.
- Impede the progress of border security and halt inforcement of immigration laws. We care about people,
the GOP does not. This is politics at its most simple.
- Increase the welfare roles by inducing more citizens to join via higher payments funded by taxes on
the top 5% earners. The tax will also help create more welfare recipients since the wealthiest will have
less descretionary income...and the GOP says we do not believe in supply side economics.
- Slow global warming and future prosperity via a cap and trade program.
Here are some talking points to promote these initiatives:
- The extra spending the government is doing today will make our citizens feel good, just like when
people go shopping to forget the worries.
- The upcoming high inflation is ideal for young adults that have no savings and high student loan debt.
This is another way for 20 to 30 crowd to get even with the wealthy members of our society.
- A smaller military will less likely invade the privacy of the citizens, or, even worse, quartered in the citizens house.
- The increase in undocument people in this country will spur economic growth.
- Wealthy people are evil.
- Snow in Washington, DC in March just proves how screwed up the environment is.
Finally, please report any reporters that you feel may be faltering in their support for The President to me so I can remove them from the preferred reporters list.
WashJeff on March 3, 2009 at 10:06 AM
Of course you would BD.
You never admit w did anything wrong.
Never will.
At least this thread is taking it better than free republic:
http://www.freerepublic.com/focus/f-news/2197561/posts?page=1
getalife on March 3, 2009 at 10:09 AM
And this would be the same “Sheriff” that brokered the sale of pardons for Clinton. Holder is as corrupt and evil as anybody else in this filthy liar’s administration. It’s all about politics and power and not about the rule of law.
highhopes on March 3, 2009 at 10:10 AM
Which part? The storming of the White House and taking down the President by force? The corrupt political class selling out the nation’s security for power and personal gain?
highhopes on March 3, 2009 at 10:13 AM
highhopes on March 3, 2009 at 10:13 AM
What is in that ship that Senator sold out for?
getalife on March 3, 2009 at 10:14 AM
If you’re trying to get conservatives to roll eyes at these, you’re having the desired effect. Otherwise get a new tactic.
DarkCurrent on March 3, 2009 at 10:16 AM
Ed, there’s got to be a limit. When do we reach it?
DarkCurrent on March 3, 2009 at 10:19 AM
I reached it some time ago, when he put four of these into a single thread. They’re big, and they disrupt the proceedings. If Ed were still using Disqus like he did on Captains Quarters, you could completely suppress the guy — it would be as if he does not exist for you (other than other people’s responses to him). His freedom of speech would still exist, but we as an audience would no longer be captive to it.
unclesmrgol on March 3, 2009 at 10:25 AM
If you have Americans acting as muslim terrorists (and you did have defacto Americans acting as muslim terrorits) you have an “insurrection” not an “invasion”.
Just as FDR got to go around rounding up the Japanese which was ALSO proved “legal” by the courts.
I’m not “owning” anything, I’m merely pointing out basic FACTS.
Of course we won’t get into Clinton actually using the military against civilians, will we?
Skywise on March 3, 2009 at 10:26 AM
Poor Obama team.
They are still campaigning against Bush. Why don’t they share their own memos? How about phone calls to Blagojevech? Did they notice how many trillions in market wealth America is losing per month? But old memos are the issue.
seven on March 3, 2009 at 10:26 AM
Remember, the reason for those missiles is not only to defend Poland or the Czech Republic, but to defend Israel and Western Europe from Iranian missiles. I think the Russians are having trouble with the radars, not the missiles, since they view the radars as early warning systems directed at them. The Russians at one point were going to allow us access to their warning systems pointed toward Iran, but retracted that. We are Shootin’ with Putin right now.
unclesmrgol on March 3, 2009 at 10:30 AM
Has there ever been a time where an administration worked so quickly? It’s like this administration is working off a very carefully crafted list.
moonsbreath on March 3, 2009 at 10:31 AM
Or Eisenhower, who used the Army to integrate when States called out their National Guards to prevent it.
We do have a history of insurrection and rebellion in the United States by both internal and external enemies, and a counter history of military deployments and martial laws to end them.
We can compare Bush’s non-reaction against our Citizens of Muslim faith after 9/11 to FDR’s reaction against our own Citizens of Japanese ancestry at the outset of WWII, for instruction as to the respective viewpoints by Republicans vs. Democrats with respect to individual liberty vs. group guilt.
unclesmrgol on March 3, 2009 at 10:39 AM
moonsbreath on March 3, 2009 at 10:31 AM
Yeah, his campaign speeches.
getalife on March 3, 2009 at 10:41 AM
That is incorrect. W should never have encouraged people whose only income was Section 8 housing allowances to “buy” homes; W should have pressed harder to reform the 2 Fs by drawing more attention to the issue and publicly shaming Raines, Gorelick and Johnson for their fraud (along with the shameless members of Congress who refused to institute reforms); W should have vetoed spending bills; W should not have nominated Harriet Miers; He should have drastically cut or eliminated corporate taxes; I have mixed feelings about his immigration policy, and the original TARP plan (the one which was approved by Congress, not the unconstitutionally revised version).
But as for this thread, the policies that Bush implemented vis a vis national security are just fine with me. As Ed correctly stated about Yoo’s proposals:
I wish we could say the same for Obama’s radically dangerous plans to destroy capitalism (and the world’s economy along with it) while turning us into a Socialist State which will exponentially grow human misery.
Buy Danish on March 3, 2009 at 10:42 AM
I stand corrected BD.
Good for you.
getalife on March 3, 2009 at 10:45 AM
Yep. It’s a far greater priority to “educate our children from birth” with Leftist propaganda, where they will learn to embrace their involuntary sacrifice of prosperity and liberty in exchange for a New World Order of universal misery.
Buy Danish on March 3, 2009 at 10:49 AM
What have they done to all the adults?
Fuquay Steve on March 3, 2009 at 10:55 AM
Don’t those banana republic thugs call themselves generalissimo or Il Duce, stuff like that? I thought Mr. Obama was gonna be all transparent about who he was. Sheriff has connotations of what you and your type consider an outdated desire to enforce the law.
jeff_from_mpls on March 3, 2009 at 10:56 AM
Obama, like too many of his nominees, has a tax problem to address. A few years ago, he paid $104,500 to Rezko’s wife for a piece of land appraised at $40,500. That’s a $64,000 taxable gift that needs to be reported on a federal gift tax return.
Let me know when he releases a copy of that return. Then, we can ask the question why he’s making such a gift to one of his financial fixers.
BuckeyeSam on March 3, 2009 at 11:02 AM
Want more context?
It is appropriate that the time stamp for this post is 8:46 AM.
Sergeant Tim on March 3, 2009 at 11:11 AM
While I agree with this, you may awake searcher484 for another round of his truther copy and paste posts.
WashJeff on March 3, 2009 at 11:15 AM
Uh huh. That must be why nearly everyone he hires doesn’t pay their taxes, and/or has a pay for play problem.
Buy Danish on March 3, 2009 at 11:17 AM
Tax evasion must be legal now.
hawkdriver on March 3, 2009 at 11:29 AM
So now the pricks are releasing info that was not acted upon.
I can only think they are doing this so Yoo can be hounded out of academia and the legal professsion.
davod on March 3, 2009 at 11:31 AM
Bagdad Holder
Kini on March 3, 2009 at 11:46 AM
This is just the Obamanistas trying to divert attention away from their intentional tanking of the US economy, especially now that some “moderates” in the MSM are starting to see at least some of the problems with Obama’s “plan.”
-Dave
Dave R. on March 3, 2009 at 11:59 AM
Holder is a trying to throw some red meat to the leftotards to keep them in a lather over Bushitlers policies. I sure we’ll see breathless articles NYT, WaPo and others about how close we came to losing our rights under conservative leadership….ho hum!
I’m enjoying the display of hypocrisy regarding comments, seems we have those that want a “Fairness Doctrine” imposed on this site.
dmann on March 3, 2009 at 12:09 PM
His freedom of speech would still exist, but we as an audience would no longer be captive to it.
unclesmrgol on March 3, 2009 at 10:25 AM
These threads can be thousands of comments long. If there is room here for the idiocy of your comments, there is certainly room for the idiocy of others.
SKYFOX on March 3, 2009 at 12:37 PM
Ed, I’d say that it wasn’t that cooler heads prevailed, its that the scenarios the memos were supposed to cover didn’t happen.
In reviewing these, I see good opinions, especially given previous Supreme Court and Circuit Court findings on exactly the issues covered.
I’m amused at the disclaimer at the bottom of the DOJ webpage (as I am with the amateur banner style):
I was able to access the inaccessible format. That’s sort of like dreaming the impossible dream, right?
unclesmrgol on March 3, 2009 at 12:40 PM
At least my comments are on topic.
unclesmrgol on March 3, 2009 at 12:41 PM
Indeed. How can anyone forget what it felt like in the first few months after that terrible day. Somethings you can absorb and move on. Others you need to cling to, to hold, to let fester, to encourage to ferment, and never let go. Because it’s so important that the pain is tolerable. I’m still disappointed to this day that so many have such short term memories.
juanito on March 3, 2009 at 12:43 PM
I guess General Sherman didn’t get the memo from the Lincoln DOJ.
andycanuck on March 3, 2009 at 12:46 PM
I think this statement about Obama should come with an expiration date. Obama has tons of very crooked friends, and it’s just a matter of time before the truth comes out about him. He moved to Chicago, the most corrupt political machine in the country, to get into politics, and has allied with such corrupt figures as Rezko, Blagojevich, and Burris. How likely is it that he deliberately sought such people out but was never touched by any of their corruption?
Just a matter of time.
tom on March 3, 2009 at 1:04 PM
That’s exactly what it looks like. Under the right circumstances — invasion, rebellion, martial law — the president has unbelievably broad powers. Invoking those powers under circumstances that don’t warrant them would be tyranny.
Bush’s record on this is clean. It’s not tarnished by discussions of highly hypothetical situations.
tom on March 3, 2009 at 1:08 PM
There’s almost too many related issues raised by the post and the comments herein to adequately address all of them. However, let me add some brief points:
(1) What Yoo was talking about seemed to be an imposition of Martial Law to effect at least a limited suspension of individual rights for the sake of national security. Whether this sort of reaction runs against the entire principle of federalism as it appears throughout the constitution is a question of enormous magnitude that I won’t touch with a ten-foot pole in a brief comment box. But it is not enough to say, as does Morrissey, that certain constitutional amendments themselves contradict what would be done under the banner of Martial Law, because the very point of Martial Law would be to circumvent such “barriers” to ensuring public safety.
(2) At least the Bush Administration relied upon a substantive theory such as Martial Law for its deliberations on the reach of the federal constitution. By contrast, the Obama Administration has no problem giving D.C. a vote in Congress despite an express provision in the constitution to the contrary. “Hello McFly?!”
(3) The Obama Administration’s decision to publicize these internal memos is disastrous and could only be calculated to garner public support for the prosecution of former Bush officials. Talk about bad form–what, are the American people now to decide the discussions which the Office of Legal Counsel can hold? I thought this office was supposed to be non-partisan and free to entertain a variety of options?
(4) If Yoo was wrong on anything (and I have not read his memo, so forgive me), it is in forgetting that the Fourth Amendment itself has been interpreted as allowing warrentless searches under numerous factual scenarios and would likely permit such searches upon probable cause that someone was engaged in terrorist activity. This is basic constitutional criminal procedure law.
(5) The biggest issue with Martial Law, to me, would be whether federal troops ought to be deployed to any domestic location for combat operations. I remember folks raising a fuss over Obama’s proposed Soviet-like “Citizen Army,” and I think this raises similar problems. To answer this question in the negative would be to create a dichotomy between foreign terrorist activity and domestic terrorist activity, with the latter falling more under civil criminal law. Of course, thanks to the Obama Administration, we now deal with even foreign terrorist activity as though it were a matter of law enforcement.
(6) Final point re: the annoying posts of a handful of contributors to Hot Air. Can we conservatives dispense with the notion that there’s such a thing as “free speech” on a privately-owned-and-operated political web site? Read the d**n First Amendment: it refers to acts of Congress. Even SCOTUS, with its uncanny ability to rewrite the federal constitution to suit its elitist tastes, hasn’t applied the First Friggin’ Amendment to individuals. So stop with the Dixie-Chick-like sensitivity and boot these idiots off the comment roster entirely. Heck, boot me off if you so desire. I’ve no “right” to be here, either.
cackcon on March 3, 2009 at 1:15 PM
This sheriff, getalife?
andycanuck on March 3, 2009 at 2:01 PM
They are doing anything they can to blame president bush so when the next terror attack occures they can claim
its because we didnt follow the useless UN’s laws..
SCrew oboama
Screw the UN..
its time to fight
jcila on March 3, 2009 at 2:38 PM
I think the entire thing is a decoy.
The Code Pink/Tin Hat crowd gets a bone to chew on, we’re momentarily distracted from the Dow and the nomination of Sebelius gets no attention whatsoever.
But I also think it will end with these occasional releases, maybe a blustery speech thrown in here and there. Based on what the Obama admin has on the agenda, they are going to do nothing to shine a spotlight on what the Exec branch can and can’t do in order to get info on possible “enemies of the State” – they’re everywhere, ya’ know!
gopmom on March 3, 2009 at 2:54 PM
Well the job your “sheriff” is doing was called war crimes when Bush was President.
Now under Obama, “He is doing his job.”
Typical liberal hypocrisy:
Obama’s War on Terror May Resemble Bush’s in Some Areas
http://www.nytimes.com/2009/02/18/us/politics/18policy.html?_r=2&pagewanted=print
We are waiting for liberals to take to the streets and demand Holder be frog marched off to jail for his association and defense of the EEEEEEEEEEEEEEEEEEevil Bush regime.
Obama Administration Maintains Bush Position on ‘Extraordinary Rendition’ Lawsuit
Yea,lets release memos that show the Bush administrations foundations for not taking any actions based on these memos and their findings what-so-ever.
When we are done wasting your time with this,we will bring up the EEEEEEEEEEEEEEEvil Rush Limbaugh.
This way we don’t have to answer for why we have pretty much taken and maintained many of the EEEEEEEEEEEEEEEevil
Bush regimes policies and methods.
Eric Holder the Neo-con
http://online.wsj.com/article/SB122731301791449521.html?mod=djemEditorialPage
I believe the “smart ones” referred to Bush as Hitler for having similar views.
Now you are called “the sheriff”.
How Progressive!!!!!
Baxter Greene on March 3, 2009 at 5:06 PM
BTW,all this transparency hoopla of Obama,I view it,
as President Bush’s,if President Bush wanted to release
it,it would of been his business,
not Hopey’s,that for sure!!
With Obama,spilling American secrets left,right,and centre,
if this was the era of WW2,for the safety of America,the
President(‘that would be Hopey’)would have to be locked up,
to protect himself,from himself!!!(Sarc!).
canopfor on March 3, 2009 at 7:06 PM
Geez, there’s stuff from friggin’ World War II that hasn’t been released yet. These guys take the cake.
Dr. ZhivBlago on March 3, 2009 at 7:24 PM
Wow. This is some slimy stuff.
No, not the legal memos. The fact that the current administration has so little respect for the office of the presidency and the burdens belonging to it that it would release these memos almost immediately on taking office.
Obviously, it’s a nakedly partisan attempt to make the Bush administration — which is no longer in power! — look bad.
To what end? Are they actually hoping to stir the pot and give Loony Leahy some ammo for the post facto impeachment trials he’s so set on?
Normal people don’t want to dive into conspiracy theories, but this raises legitimate questions about Holder’s motives for releasing this information. And that certainly raises questions about Obama’s motives.
tom on March 3, 2009 at 7:46 PM
Let’s tell our enemies how weak we are willing to be, right Barry?
Right, (OFFICE) Holder?
Thanks President Bush and crew for being willing to fight for our survival.
The funny thing is that the release of this material won’t distract anyone, as intended, from B. Hussein’s failing to stimulate anything but his own puny ego.
profitsbeard on March 3, 2009 at 9:05 PM
PARTIAL LIST OF DOCUMENTS THAT BARACK OBAMA REFUSES TO RELEASE -. OBAMA’S SECRECY AND “CLOSED RECORDS” POLICY
Indonesian Passport – Not released
Application for U.S. Citizenship (as former citizen of Indonesia) – Not released
Immigration Records – Not released
Original Vault Copy Birth Certificate – Not released
Certificate of Live Birth – Counterfeit Version on Obama Web Site
Obama / Dunham Marriage License – Not released
Soetoro / Dunham Marriage License – Not released
Soetoro Adoption Records – Not Released
Fransiskus Assisi School Application – Not released
Punahou School Records – Not released
Selective Service Registration – Counterfeit version generated
Occidental College records – Not released
Columbia College Records – Not released
Columbia Thesis – Not released
Harvard College Records – Not released
Baptism Certificate – None
Medical Records – Not released
Illinois State Senate Records – Not released
Law Practice Client List – Not released
University of Chicago Scholarly Articles – None .’;lpok
searcher484 on March 3, 2009 at 10:21 PM
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