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 The memos advised George Bush of his legal range of action, but later had to be rewritten or withdrawn as cooler heads prevailed.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10 legal opinions conferring broad powers on the president that the Justice Department later deemed flawed and ordered withdrawn, including several approving the military’s search, detention or trial of civilians in the United States without congressional input, according to the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.