Constitutional Law

Declassified Memos Reveal Vast Claims of Executive Power

The Justice Department has released nine memos written by officials in the Office of Legal Council (OLC) under President George W. Bush, which according to The Washington Post, contain a 'number of major legal errors committed by Bush administration lawyers during the formulation of its early counterterrorism policies.'

A central figure in the newly released memos is John C. Yoo, a tenured professor at the University of California, Berkeley Law who served in the OLC as deputy assistant attorney general. Seven of the nine memos were written during Yoo's tenure at the OLC from 2001 to 2003, and most of those bear his signature as an author. The remaining two memos were written during the final months of President Bush's time in office and repudiate many, but not all, of the controversial positions taken in the previous memos.

One of the memos drafted by Yoo is an opinion authorizing domestic military operations beyond mere stationing of troops in streets and at airports. The Oct. 23, 2001 memo reasoned that the Posse Comitatus Act, forbidding the military from engaging in domestic law enforcement, was an obstacle overcome by the military's national security function. 

The memo also discloses the administration's position that Fourth Amendment protections against unreasonable searches and seizures did not apply to the search for terrorists on American soil. 'The law has recognized that force (including deadly force) may be legitimately used in self-defense,' wrote Yoo and Special Counsel Robert J. Delahunty. That same memo also included the opinion that, 'First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.' In case these expansions of authority were deemed insufficient, the opinion adds that 'the current campaign against terrorism may require even broader exercises of federal power domestically.'

In a speech coinciding with the release of these memos, former ACS Board Member and now Attorney General Eric Holder said that he understands the need to protect the United States from terrorism, 'but we must do so in a manner that preserves, protects and defends the rights that are enshrined in our Constitution, and the rule of law itself.'

Among a package of policy proposals urged of the new administration by ACS contributors is one entitled 'All the President's Lawyers: How to Avoid Another ‘Torture Memo' Debacle.' The author of that ACS Issue Brief is President Obama's nominee to head the OLC, Dawn Johnsen.

Full post as published by ACS Blog on March 03, 2009 (boomark / email).