By Dan Froomkin
12:52 PM ET, 03/ 3/2009
The memo issued by the acting director of the Justice Department's Office of Legal Counsel just five days before Barack Obama took office comes across almost as, among other things, a bit whiny.
Steven Bradbury wrote to officially retract a series of memos in which his former colleagues secretly rewrote the Constitution.
He acknowledged that their reasoning was at various points "unconvincing" and "not sustainable."
But Bradbury was also making excuses for them. They were afraid, he wrote: "The opinions addressed herein were issued in the wake of the atrocities of 9/11, when policymakers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the nation." They were rushed, confronting "novel and complex legal questions in a time of great danger and under extraordinary time pressure."
No excuse. Not even close.
The memo was one of nine previously undisclosed Office of Legal Counsel documents released by Obama's Justice Department yesterday, most of them making baldly spurious legal arguments to support any number of unprecedented tactics that were either contemplated or employed by the White House.
At about the same time the documents were being released, Attorney General Eric Holder was making a speech putting them in context: "Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Holder said. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good. I have often said that the test of a great nation is whether it will adhere to its core values not only when it is easy, but also when it is hard....
"There is no reason we cannot wage an effective fight against those who have sworn to harm us while we respect our most honored constitutional traditions. We can never put the welfare of the American people at risk but we can also never choose actions that we know will weaken the legal and moral fiber of our nation."
R. Jeffrey Smith and Dan Eggen write in The Washington Post: "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....
"In one of the newly disclosed opinions, Justice Department appointee John Yoo argued that constitutional provisions ensuring free speech and barring warrantless searches could be disregarded by the president in wartime, allowing troops to storm a building if they suspected terrorists might be inside. In another, the department asserted that detainees could be transferred to countries known to commit human rights abuses so long as U.S. officials did not intentionally seek their torture."
Neil A. Lewis writes in the New York Times: "The opinions reflected a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.
"Some of the positions had previously become known from statements of Bush administration officials in response to court challenges and Congressional inquiries. But taken together, the opinions disclosed Monday were the clearest illustration to date of the broad definition of presidential power approved by government lawyers in the months after the Sept. 11 attacks."
Josh Meyer and Julian E. Barnes write in the Los Angeles Times that one Bush administration lawyer told them the memos are "just the tip of the iceberg" in terms of what was authorized.
Law professor Jack Balkin blogs about "reasoning which sought, in secret, to justify a theory of Presidential dictatorship...
"This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.
"These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11."
Scott Horton blogs for Harper's: "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it."
Glenn Greenwald blogs for Salon: "Over the last eight years, we had a system in place where we pretended that our 'laws' were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our Government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the President. Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them."
Greenwald also writes, with some vindication: "Yet those who have spent the last several years pointing out how unprecedentedly extremist and radical was our political leadership (and how meek and complicit were our other key institutions) were invariably dismissed as shrill hysterics."