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Memos reveal post-9/11 power play

Lawyers said president could override Congress, courts

WASHINGTON – The Obama administration Monday made public a series of long-secret legal memos setting out an extraordinarily broad interpretation of presidential power that was used by the Bush White House to justify its actions in the war on terrorism, including one 2001 opinion concluding that the military could treat suspected terrorists in the United States like members of an invading foreign army who lacked constitutional rights.

The memos provide a detailed glimpse into the thinking of President George W. Bush’s Justice Department legal advisers at a time of national emergency. Together, they embraced the view that the president, acting alone, had the authority to override the other branches of government on a range of issues. The Justice Department’s Office of Legal Counsel, in a memo written six weeks after the Sept. 11, 2001, terrorist attacks, would have allowed U.S. soldiers to search houses and seize suspected terrorists without a court-approved warrant. The Pentagon never used that power, according to a former Bush administration lawyer, but the memo was the legal basis for some in the administration who wanted to use the military, instead of law enforcement agencies, to arrest al-Qaida suspects inside the United States, he said.

In the immediate aftermath of the attacks on New York and Washington, the Justice Department lawyers also said the military’s need to go after terrorists in the United States might override constitutional protections guaranteeing the right to free speech. And by then, the memos showed, the Bush administration was discussing ways to wiretap U.S. conversations without warrants and to take other steps without the traditional oversight of the Congress and the courts.

The memos also showed that five days before leaving office, the Bush Justice Department issued a secret but remarkable retraction of some sweeping definitions of presidential authority that its own lawyers had authored, instead of leaving it for the incoming Obama administration to do so as it had promised.

In a Jan. 15 “Memorandum For The Files,” Principal Deputy Assistant Attorney General Steven G. Bradbury said many of the Office of Legal Counsel opinions issued between 2001 and 2003 no longer reflected the views of the Justice Department and “should not be treated as authoritative for any purpose.”

Bradbury’s memo and another one disclosed Monday further explained that other Bush-era Justice Department opinions had been withdrawn or superseded, and that “caution should be exercised” by the executive branch “before relying in other respects” on some additional opinions that had not been superseded or withdrawn.

The Justice Department had withdrawn some of its more controversial legal memorandums years earlier, Bradbury added, “and on several occasions we have already acknowledged the doubtful nature of these propositions.” But the memos released Monday go well beyond what was known about the Bush administration’s assertion of presidential power; many other legal opinions remain classified.

The Oct. 23, 2001, memo authorizing the use of the military in the United States was written by then Deputy Assistant Attorney General John C. Yoo – now a law professor at the University of California at Berkeley – and Special Counsel Robert J. Delahunty. Yoo did not return calls seeking comment, and Bradbury declined to comment.

“These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law,” they said. But, they said the president, as commander in chief in such a time of war, had the right to authorize such extraordinary actions to protect the American public.

Obama and his attorney general, Eric H. Holder Jr., have vowed to release other still-secret Bush legal memos as soon as possible. “Americans deserve a government that operates with transparency and openness,” Holder said in a statement Monday.

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