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The Need to Know

By Dan Froomkin
12:40 PM ET, 03/ 4/2009


A detail from artist Fernando Botero's reflection on the 2004 prisoner abuse scandal at Iraq's Abu Ghraib prison.

The Senate Judiciary Committee today is holding a hearing on Chairman Patrick Leahy's proposal to establish a bipartisan "truth commission" to examine former president George W. Bush's counterrorism strategies. The timing couldn't be better.

The nine previously undisclosed Justice Department memos released on Monday (see yesterday's post, Bush's Secret Dictatorship) are a vivid reminder that we need to more fully explore not just the Bush administration's conduct regarding detainee policies and wiretapping, but the covert attempts to rewrite the nation's laws that enabled both -- and who knows what else.

Much has been exposed already, here and there, by journalists (especially in a handful of books), in civil litigation, during the course of a few limited congressional investigations, and now through the limited release of documents by new management.

But much remains unknown. Who knew what, and when did they know it? How direct was the link between what happened in the offices of the president and vice president and in the holding pens of Guantanamo and Abu Ghraib? How willful was the administration's corruption of the law?

The people responsible have not been made to answer to the public. And the victims have not had a chance to tell their stories to the nation and the world.

Charlie Savage and Neil A. Lewis write in today's New York Times: "A day after releasing a set of Bush administration opinions that claimed sweeping presidential powers in fighting terrorism, the Obama administration faced new pressure on Tuesday to support a broad inquiry into interrogation, detention, surveillance and other practices under President George W. Bush.

"Justice Department officials said they might soon release additional opinions on those subjects....

"Among those that have not been disclosed but are believed to exist are a memorandum from the fall of 2001 justifying the National Security Agency’s program of domestic surveillance without warrants and one from the summer of 2002 that listed specific harsh interrogation techniques, including waterboarding, that the C.I.A. was authorized to use."

Savage and Lewis also note: "The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.

"The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials."

David G. Savage writes in the Los Angeles Times: "Legal experts said Tuesday that they were taken aback by the claim in the latest batch of secret Bush-era memos that the president alone had the power to set the rules during the war on terrorism....

"'You can never get over how bad these opinions were,' said [Duke University law professor Walter Dellinger], who headed the Justice Department's Office of Legal Counsel in the Clinton administration. 'The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution's text, to judicial precedent and to historical practice."

Ari Shapiro reports for NPR: "About a month ago, the American Civil Liberties Union sent the Justice Department's Office of Legal Counsel a letter and a chart. The chart listed 55 classified Bush administration legal memos on national security issues. The letter basically said, 'release these memos.'

"Some of the memos that the Justice Department declassified Monday were not even on the ACLU's list.

"'So there are dozens of memos that are still secret,' said Jameel Jaffer, director of the ACLU's national security project. They include 'memos that provided the basis for the national security agency's warrantless wiretapping program and memos that provided the basis for the CIA's torture program.'...

"One reason there's a lot of interest in these documents is that they could contain some surprises. For example, one memo declassified Monday is dated Oct. 23, 2001. It asserts that the military can ignore Americans' Fourth Amendment privacy rights and conduct searches against suspected terrorists without a warrant. It's a controversial claim, but the public learned about the assertion years ago in a footnote to another Justice Department document. The public did not know about a line in the same memo that said: 'First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.'"

In an interview published today with Orange County Register reporter Eugene W. Fields, John C. Yoo, the former Justice Department lawyer who authored several of the most controversial memos, expressed only one regret: That the memos "lack a certain polish."

"Q. Is there anything you would have done differently?

"A. These memos I wrote were not for public consumption. They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently."

He whined about the pressure he was under.

"Q. Do you have a different perspective as a private citizen?

"A. The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions. You don't have the luxury to research every single thing and that's accelerated in war time. You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure (he laughs), is that in hindsight, it's easier to say, 'Here's what I would have done.' But when you're in the government, at the time you make the decision, you don't have that kind of luxury."

Asked about a recent opinion piece he wrote for the Wall Street Journal criticizing Obama for ordering the closure of the Guantanamo Bay prison, Yoo replied: "Now that I'm not in the government, part of my role, because I have a certain amount of expertise, is to try to keep the government honest."

As for his future, he had this to say: "If I never serve in government again, that would be fine with me."

Tim Rutten writes in his Los Angeles Times column: "Just how close to the brink of executive tyranny did the United States come in the panic that swept George W. Bush's administration after 9/11? The answer, it now seems clear, is that we came far closer than even staunch critics of the White House believed."

The New York Times editorial board writes: "The released memos were written by the Justice Department’s Office of Legal Counsel, which is supposed to ensure policies comply with the Constitution and the law. They make it chillingly clear how quickly that office was rededicated to finding ways for Mr. Bush to evade, twist or ignore both."

The Washington Post editorial board writes that the memo make clear "how intellectually dishonest Bush-era lawyers were in coming to these preposterous conclusions."

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