Executive Power

As Unreasonable As They Wanna Be


If the remake of Friday the 13th didn't do it for you, have a look (if you dare) at this heretofore secret October 2001 legal memo (PDF), released by the Justice Department yesterday. "If the President concludes that it is necessary to use military force domestically to counter [terrorists]," say the authors, Office of Legal Counsel (OLC) lawyers John  Yoo and Robert Delahunty, "the Fourth Amendment would be no more relevant than it would be in cases of invasion or insurrection." Translation: If the president hands terrorism investigations over to the Pentagon, "unreasonable searches and seizures" are A-OK. Yoo and Delahunty explain that "our forces must be free to 'seize' enemy personnel or 'search' enemy quarters, papers and messages without having to show 'probable cause' to a neutral magistrate, and even without having to demonstrate that their actions were constitutionally 'reasonable.'" Censorship aimed at defeating terrorism would be legal too, they suggest, since "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

Other OLC memos released yesterday, according to the New York Times summary, argue that "judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants," that Congress lacks "any power to limit a president's authority to transfer detainees to other countries," and that Congress has "no right to intervene in the president's determination of the treatment of detainees." In the most recent memo, dated January 15, 2009, OLC head Steven Bradbury officially repudiates these positions, which he says are "dubious propositions" that are "not sustainable" but have to be understood as the work of government lawyers confronting "novel and complex questions in a time of great danger and under extraordinary time pressure."

In essence, then, OLC lawyers told President Bush he could do whatever the hell he wanted as long as he did it in the name of fighting terrorism, and the guy in charge of the office waited until five days before Bush left office to say they were wrong. Furthermore, although the Bush administration kept these documents secret for years on national security grounds, the Obama Justice Department quickly "determined that those memos did not contain any classified material and could be made public." Obama, who in other respects has been parroting his predecessor's state secrecy arguments, deserves credit for coming down on the side of openness in this case—and, perhaps not incidentally, making his civil libertarian credentials look better in comparison with the Bush administration's extreme views on executive power.

But let's not get carried away. The Times says "President Obama has signaled a reluctance to launch a wide-ranging investigation into his predecessor's policies, saying that he prefers to fix the policies and move on." Toward that end, "he issued executive orders requiring strict adherence to anti-torture rules, and as a senator he voted for legislation that brought surveillance efforts into alignment with federal statutes." Obama's position on torture definitely is an improvement, but it would be more accurate to say that he brought federal statutes into alignment with surveillance efforts, rather than the other way around. While the legislation he supported did not go the Yoo-Delahunty route of dispensing with surveillance warrants altogether, it effectively eliminated privacy protections for international telephone calls and email involving people in the United States. The constitutionality of that policy remains an open question.

The OLC memos are available here. The ACLU has background here, including a list of still-secret memos it says the Obama administration should release.

Brian Doherty noted the newly released memos earlier today. Yesterday I discussed the administration's attempts to block litigation over the Bush administration's illegal surveillance program. Last month Radley Balko noted that the Justice Department also is pressing a state secret argument against a rendition/torture lawsuit. In a 2008 column, I pointed out that a 2003 Yoo memo on torture cited the Fourth Amendment conclusions of his then-secret October 2001 memo.