Terrifying Memos

During an interview with Larry King which aired on January 13 (http://transcripts.cnn.com/TRANSCRIPTS/0901/13/lkl.01.html), President George W. Bush said “I got legal opinions that said whatever we’re going to do is legal” in terms of counter-terrorism policies. 

 

Bush’s statement is eerily reminiscent of President Richard Nixon’s statement that “If the president does it that means it’s not illegal.”

 

This week the Department of Justice released nine memos written by the Office of Legal Counsel (OLC) during the Bush administration.  The memos suggest that during wartime the president has the right to do almost anything he or she deems to be in the interest of national security.  In a memo dated October 23, 2001 (http://www.usdoj.gov/opa/documents/memomilitaryforcecombatus10232001.pdf), Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty stated that “the President has ample authority to deploy military force against terrorist threats within the United States.  The Fourth Amendment would not apply in these circumstances…the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.”  This appears in part to be an attempt to justify the use of warrantless surveillance by military organizations such as the National Security Agency and the Defense Intelligence Agency against people in the US who use phones, emails, instant messages or faxes.  It also suggests that the Posse Comitatus Act, a law which prevents the president from using military units to attack people in the US, does not apply to counter-terrorism operations.

 

The same memo also claims that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”  Other memos say that the president can authorize the torture of prisoners held overseas, and that American citizens can be detained indefinitely.

 

The October 23 memo suggests that presidential powers extend beyond those specifically mentioned in the legal opinions when it says “The current campaign against terrorism may require even broader exercises of federal power domestically.”

 

Essentially, the OLC argues that the president is not bound by the Constitution during wartime.  The First, Fourth and Sixth Amendments are specifically cited as being non-applicable in a post 9/11 world. 

 

Congress is debating whether to investigate and prosecute members of the Bush administration who may have used these memos as a justification for wrongdoing.  Some lawmakers have suggested that a “Truth Commission” be created for such a purpose, while others say that the Justice Department has the ability to do those tasks without the help of an outside organization.

 

The OLC memos should be terrifying to anyone concerned about civil liberties.  It will be interesting to see if former Bush administration officials are charged or convicted of crimes which violated the Constitution.  It is doubtful that President Bush will face such charges given the fact President Obama wants to focus on more immediate issues and avoid a partisan battle over actions taken by his predecessor.  Gerald Ford’s pardon of Richard Nixon might serve as a precedent in this case.  The fact that the Justice Department revealed the previously secret memos and condemned them is a positive development, and hopefully it will deter future presidents from claiming that they are above the law.

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