Monday, March 2, 2009
The Obama Justice Department today released nine OLC memos from the Bush administration ruling on everything from executive military detention of U.S. citizens to executive authority to engage in extraordinary rendition. The memos are here.
These are simply breathtaking. They will clearly clearly add fuel to the fire to investigate Bush administration excesses in the war on terror and offer significant new fodder for those calling for prosecution of Bush administration officials.
The long-and-short of the argument is well known: The President, as Commander in Chief, possesses inherent Article II power to disregard U.S. law, treaties, and the U.S. Constitution--anything standing in his path to prosecute the war on terror--both abroad and at home. And even if the President doesn't have inherent Article II power, he has authority under the AUMF.
But these new memos apply this argument to situations previously undisclosed. For example, the October 23, 2001, memo concludes that the Fourth Amendment doesn't apply to domestic military operations designed to deter and prevent further terrorist attacks and that the Posse Comitatus Act doesn't limit the President's authority to engage the military domestically. The March 13, 2002, memo concludes that the President has plenary power as Commander in Chief to render members of al Qaeda and the Taliban to third countries, and that nothing in the Geneva Conventions or the Torture Convention restrict this (because the President has determined that those treaties do not apply to al Qaeda and the Taliban). The June 27, 2002, memo concludes that the President could detain U.S. citizens as enemy combatants, irrespective of 18 U.S.C. 4001(a) (stating that no U.S. citizen shall be detained except pursuant to an Act of Congress).
There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:
As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.
Emphasis mine. Justice Jackson's opinion in Youngstown isn't even mentioned. (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)
Now for perhaps the most shocking part: As soon as the Bush administration was on its way out--but only well after the Supreme Court had reined it in on these and related issues--the OLC retracted nearly all of this. In memos on October 6, 2008, and January 15, 2009, the OLC stepped back from these extraordinary positions--articulated, as it said, in an "extraordinary historical context" in the wake of the 9/11 attacks--and specifically retracted and cautioned against relying on key portions of these earlier memos. The language in the retractions tells just how flawed the earlier memos were and (presciently) attempts to provide legal cover for their authors.
I'll take a closer look at these and how they play and post more as reactions set it. The administration is reviewing these; we don't yet know whether it's going to do anything.