AG Holder Lets Sun Shine on Bush-Era Documents

By Margie Burns

On March 2, Attorney General Eric Holder took a significant step toward healing injuries from the previous Justice Department, releasing seven previously closeted legal opinions issued by the Bush Office of Legal Counsel and two recent Justice opinions rejecting the earlier ones. The Office of Legal Counsel (OLC) provides legal advice to the president, the Executive Branch and the Justice Department, including “legal advice to the Executive Branch on all constitutional questions.”

The seven documents issued in 2001 and 2002 legalized sweeping expansions of executive power in the ‘war on terror.’ A memorandum issued Sept. 25, 2001, expands the power to conduct searches on citizens, with gathering foreign intelligence not the purpose but “a purpose” of searches. A 37-page memorandum issued Oct. 23, 2001, expands a president’s power to use US military forces inside the United States, if the stated purpose is anti-terrorism, and states that the use of military force “need not follow the exact procedures that govern law enforcement operations.” A March 13, 2002, memorandum lets a president transfer someone accused of terrorism to other countries. This memorandum seems to underpin illegal rendition flights by CIA that sent prisoners to countries where they have been tortured—although the memo itself says that detainees should not be sent to a country that will torture them. The memorandum may thus actually facilitate some prosecutions. It was issued on the six-month anniversary of the attacks of Sept. 11, 2001—when the Bush White House and its allies in Congress and the media launched the first large-scale attempt to connect 9/11 to Iraq and Saddam Hussein.

Holder says more memoranda will be released. Sunlight cannot come soon enough, since all seven of the opinions released are horrifying. The single bright spot is that the Bush administration did not apply all measures placed at its disposal by Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty among others.

Meanwhile, the two second-thought opinions just released, authored in 2008 and 2009 by Stephen Bradbury, Principal Deputy Assistant Attorney General, reject the previous opinions. Bradbury’s Oct. 6, 2008, memorandum says that the Yoo memorandum above, expanding a president’s use of military force inside the US, “should not be treated as authoritative.” It would seem that Bradbury and Justice Department personnel concluded as early as 10/6/09 that John McCain was unlikely to win the White House.

The Bradbury memorandum issued Jan. 15, 2009, is decisive:

“The purpose of this memorandum is to confirm that certain propositions stated in several opinions issued by the Office of Legal Counsel in 2001-2003 respecting the allocation of authorities between the President and Congress in matters of war and national security do not reflect the current views of this Office. We have previously withdrawn or superseded a number of opinions that depended upon one or more of these propositions.”

While the two Bradbury documents have been called “CYA” by legal analyst John Dean (of Watergate fame), appearing on MSNBC’s Countdown with Keith Olbermann, they provide a roadmap to the thinking of the previous administration.

As Bradbury sums up, “A number of OLC opinions issued in 2002-2003 advanced a broad assertion of the President’s Commander in Chief power that would deny Congress any role in regulating the detention, interrogation, prosecution and transfer of enemy combatants captured in the global War on Terror.” Bradbury then cites five memoranda issued from March 13, 2002, to March 14, 2003.

Four of the five superseded opinions use a same key phrasing that former Deputies in the Justice Department must have liked very much. On Apr. 8, 2002, Deputy AG Patrick Philbin wrote, “Indeed, Congress may no more regulate the President’s ability to convene military commissions or to seize enemy belligerents than it may regulate his ability to direct troop movements on the battlefield.” On June 27, 2002, Yoo wrote, “Congress may no more regulate the President’s ability to detain enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” On Aug. 1, 2002, Assistant AG Jay Bybee wrote that “Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” On March 14, 2003, Yoo wrote that “In our opinion, “Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

So the Justice deputies saw a parallel between directing troop movements on the battlefield—something not actually done by modern presidents, who eagerly accede to their generals on the ground—and the treatment of prisoners of war. Not that the “enemy combatants” were ever called prisoners of war, since that would mean treating them according to Geneva Convention. Besides, the “war on terror” never included a formal declaration of war. This parallel—rightly repudiated—is dangerous circular argument. It claims that every detainee is implicitly a soldier, but without the burden of proof.

It is also ridiculous. Nobody in his right mind could rationally see a prisoner as having the mobility, resources and fighting capability of troops on the battlefield. Only an ideologue who sees every Middle Easterner—even in shackles or in a jail cell—as some kind of demonic Jafar with magical powers to do evil, as in the Aladdin tales, would incline to this kind of thinking.

Margie Burns is a Texas native who now writes from Washington, D.C. Email See her blog at

From The Progressive Populist, April 1, 2009

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