In the waning days of the Bush administration, the Justice Department renounced some of its own sweeping legal justifications, which were enacted after the 9/11 attacks, for spying on Americans and for harsh interrogations of terror suspects.
In a memo written five days before President Barack Obama took office, Steven Bradbury, the then-principal deputy assistant attorney general, warned that a series of opinions issued secretly by the Justice Department's Office of Legal Counsel "should not be treated as authoritative for any purpose."
Bradbury said he wrote the 11-page document to confirm that "certain propositions" in memos issued by the Justice Department from 2001 to 2003 "do not reflect the current views of this office."
They were just spitballin', throwing ideas at the wall to see which stuck, running them up the flag pole to see who saluted. Never mind that, from 2001 to 2003, those legal opinions remained unopposed by the Bush administration -- unused bullets in their arsenal of legal defense.
And, believe it or not, this is the good news part -- that these memos saw the light of day at all. The bad news is that the Obama administration is sitting on "dozens" more.
"We welcome the Justice Department's decision to release these memos, some of which provided the basis for the Bush administration's unlawful national security policies," said Jameel Jaffer, Director of the ACLU National Security Project, in a statement. "These memos essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States. We hope today's release is a first step, because dozens of other OLC [Office of Legal Counsel] memos, including memos that provided the basis for the Bush administration's torture and warrantless wiretapping policies, are still being withheld. In order to truly turn the page on a lawless era, these memos should be released immediately."
Among the unreleased documents are legal arguments detailing "Legal standards for intelligence methods," "Laws and treaties regarding treatment of prisoners," "Criminal charges against American terrorists," and "Options for interpreting the Geneva Conventions."
And the released memos are bad enough. One argues that the president has king-like power to take away a person's rights. "The power to dispose of the liberty of individuals captured ... remain in the hands of the president alone," it reads.
Another stated that the First Amendment was basically a privilege, not a right. "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," it said.
"[White House legal counsels John Yoo and Robert Delahunty] said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects," the New York Times reports. "They reasoned that the troops would be acting in a national security function, not as law enforcers." In other words, the president could use troops as police without declaring martial law.
"One of the central facts that we, collectively, have not yet come to terms with is how extremist and radical were the people running the country for the last eight years," writes constitutional scholar Glenn Greenwald. "That condition, by itself, made it virtually inevitable that the resulting damage would be severe and fundamental, even irreversible in some sense. It's just not possible to have a rotting, bloated, deeply corrupt and completely insular political ruling class -- operating behind impenetrable walls of secrecy -- and avoid the devastation that is now becoming so manifest. It's just a matter of basic cause and effect."
These memos came out as a result of an ACLU request under the Freedom of Information Act. However, while the ACLU requested "dozens" of these documents, the Obama administration has released nine. You'd hope more are on the way and that this isn't just the administration throwing the ACLU a bone.
But it very well may be the latter. The Obama administration has been surprisingly helpful to the previous administration's policy of secrecy. While it may be that these remaining documents are still under review -- they've been declared state secrets, after all, and it would be foolish to release them without being sure you're not giving anything away -- it may also be that Obama's unwilling to give up all the power Bush and Cheney centralized in the Oval Office.
"[E]ven a quick review of these newly disclosed documents leaves no doubt about their historical significance," writes Greenwald, calling them a "grotesque blueprint for what the U.S. Government became" under Bush. Greenwald says these aren't just memos (they're all very large files, not just notes), but rather "the official and formal position of the U.S. Government -- at least of the omnipotent Executive Branch -- from the time it was issued until just several days before George Bush left office..."
So that's the bad news. There are more of these things still secret than those that have been revealed. If these are the only memos that will be released, then it'll be hard to argue that Obama's not protecting Bush and, by extension, the expanded executive powers Bush claimed.
Those powers are a legal fiction and applying them is an abuse by default. Hanging on to Bush's legal arguments can't possibly serve any purpose helpful to you or me. It can only help a president abuse his office.