ABC News & Matt Renner / Truthout & The Raw Story – 2009-03-06 08:34:20
DOJ Memos Reveal Legal Thinking Behind Controversial Bush Terrorism Policy
Legal Guidance Gave US Military Broad Domestic Authority
Ariane De Vogue, Pierre Thomas & Jason Ryan / ABC News
WASHINGTON (March 2, 2009) — The Justice Department today released nine national security legal opinions written by the Bush administration, and revealed that in the weeks before President George W. Bush left office, an administration attorney had disavowed all of them.
The newly released memos deal with warrantless wire tapping, executive power and the seizure of terrorism suspects, all of which were issues on which the Bush administration received criticism from civil liberties advocates.
On Jan. 15, 2009, Principal Deputy Assistant Attorney General Steven Bradbury wrote a “memorandum for the Files” stating that the opinions were no longer being relied upon and that they were “not consistent with the current views” of the Office of Legal Counsel.
The release of the memos today appears to be a tacit admission that many of the legal findings made by the Justice Department in weeks and months after the terror attacks of Sept. 11, 2001, giving Bush extradordinary executive power, were flawed.
Some of the most broad sweeping memos concern what authority the military has on US soil, which notes that the Fourth Amendment would not apply for domestic military operations and the assertion that the First Amendment, particularly as it applies to freedom of speech and of the press, may have to be “subordinated.”
An Oct. 23, 2001, memo titled, “Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States” states that military operations on US soil would not violate the Posse Comitatus Act, since the military would be conducting military operations and would not be operating in a law enforcement capacity.
The Posse Comitatus Act prohibited the use of the military as law enforcement within the United States, “except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.”
The memo also casts aside parts of the Fourth Amendment in its legal analysis.
“The Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks,” the memo said.
The memo also notes: “The Fourth Amendment was aimed primarily at curbing law enforcement abuses. … In our view, however well suited the warrant and probable cause requirements may be as applied to criminal investigation or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy.
“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” the memo says. “The current campaign against terrorism may require even broadened exercises of federal power domestically. Terrorists operate within the continental United States itself and escape detection by concealing themselves within the domestic society and economy.”
The memos were, in part, revoked on the legal analysis by Bradbury, who wrote in his Jan. 15, 2009, memo in the final days of the Bush administration: “The purpose of the 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.”
In the 11-page memo, Bradbury explained that many of the opinions had been written “in the wake of the atrocities of 9/11,” but that they departed from the usual practice of the office by addressing “broad contours of legal issues” instead of targeting specific and concrete policy proposals.
Jameel Jaffeer, director of the American Civil Liberties Union’s National Security Project, praised the release of the memos, but said he was troubled by what they revealed.
“The story is that the OLC argued that neither the Bill of Rights nor congressionally enacted statutes bind the president during war time, not on foreign battlefields and not on US soil,” Jaffeer said.
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Truth Commission May Not Lead to Prosecutions
Matt Renner / t r u t h o u t | Report
WASHINGTON, DC (March 5, 2009) — The Senate Judiciary Committee held a hearing Wednesday to explore setting up a commission to investigate and report on potentially criminal policies of the Bush administration.
Critics of this approach charge that it could interfere with high-level criminal prosecutions, which are ready for immediate action by an independent or special prosecutor.
The Senate Judiciary Committee took testimony from expert witnesses on the pros and cons of organizing a special committee for the task of looking back at policies of the Bush administration, which may have led to warrantless surveillance, illegal detention and torture during the so-called “War on Terror.”
“We must not be afraid to look at what we have done, to hold ourselves accountable as we do other nations who make mistakes. We must understand that national security means protecting our country by advancing our laws and values, not discarding them,” Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) said, later adding, “in order to restore our moral leadership, we must acknowledge what was done in our name. We cannot turn the page until we have read the page.”
Arlen Specter (R-Pennsylvania) the highest-ranking Republican on the Judiciary Committee, called the actions of the Bush administration “the greatest expansion of executive power in United States History.” Spector went on to say that the actions of Bush administration lawyers who provided legal justifications for potentially unlawful Bush administration policies may amount to “criminal conduct.”
Spector stopped short of endorsing the idea of a commission, instead arguing that the Department of Justice (DOJ) should be tasked with prosecuting officials who may have committed crimes.
The hearing comes on the heels of the release of legal memorandums from the Bush administration’s Office of Legal Counsel (OLC), the DOJ office tasked with providing legal interpretations for the president. The documents reveal the controversial legal arguments for an expansion of presidential power in the days after September 11, 2001. In the documents, OLC lawyers argue that, in wartime, the president has almost unlimited authority to use military force on US soil, to detain US citizens, to suspend constitutional protections of privacy, free speech and press freedoms, as long as the president thinks that these actions are needed to protect the country against terrorism.
Attorney General Eric Holder, who released the memos on Monday, said he will be releasing more of these memos, but did not set a date.
The first four witnesses stressed the importance of constructing a full account of what actually happened as a result of Bush administration policies and publicly exposing the misdeeds in order to restore the reputation of the United States on the world stage.
The testimony of former Ambassador Thomas Pickering, Retired Vice Adm. Lee Gunn, Former New Jersey Attorney General John Farmer Jr. and former Church committee general counsel Frederick Schwarz can be read at the hearing web site along with the testimony of the opponents of the commission, Council on Foreign Relations member David Rivkin and George Mason University law professor Jeremy Rabkin.
Rivkin and Rabkin testified that any commission set up by Congress would not be independent enough to be useful and would end up engaging in retribution instead of fact-finding. Both men struggled for talking time because only two Republican senators attended the hearing, limiting the number of questions the opponents of the commission idea were asked.
An issue central to the formation of a commission to examine possible criminal wrongdoing is whether individuals who testify will be granted immunity. Previous examples of so-called “Truth and Reconciliation” commissions have come under criticism for allowing those who violated the law to avoid prison.
Historically, these commissions have been used to document atrocities in lieu of formal prosecutions where official court cases could have been too destabilizing to a weak central government or too divisive to a society recovering from conflict.
Constitutional scholar Jonathan Turley argued against using such a commission to avoid dealing directly with crimes committed by Bush administration officials on his blog.
“We are not some new nation emerging from civil war or dictatorship. We are a nation of laws. Bush officials have already confirmed the acts of torture and we are obligated by treaty to prosecute such war crimes … Otherwise, President Obama’s repeated statements of ‘no one being above the law’ will appear a pretty cynical spin designed to give the appearance of actions while evading our collective international obligations.”
During Wednesday’s hearing, Sen. Russ Feingold (D-Wisconsin), chairman of the Senate Judiciary Subcommittee on the Constitution, argued in favor of a fact-finding commission, which would leave the door open to prosecution.
“On the question of immunity, I think we should tread carefully. There are cases that may require prosecution and I would not want a commission of inquiry to preclude that. Those who clearly violated the law should be prosecuted,” Feingold said, adding, “while a commission of inquiry is the best way to get the facts out, Congress, the Justice Department, and the public should decide what to do with those facts.”
Michael Ratner, the president of the Center for Constitutional Rights and author of “The Trial of Donald Rumsfeld” has spent the past seven years documenting the abuse of prisoners held at the Guantanamo Bay detention center, the Abu Gharib prison in Iraq, the detention facility at Baghram Air Base in Afghanistan, and various secret CIA prisons. In his book, Ratner lays out the case for the criminal prosecution of former Secretary of Defense Donald Rumsfeld and various other military and civilian officials linked to the detention and interrogation policies of the Bush administration.
In an interview with Truthout, Ratner recommended Attorney General Holder immediately appoint an independent prosecutor, who could quickly build a case against former Vice President Dick Cheney for his role in approving waterboarding, former Secretary of Defense Donald Rumsfeld for his direct role in the documented torture of Mohammad al-Qahtani and former CIA Director George Tenent for his agency’s role in what Ratner calls the “torture conspiracy.”
“To stop torture in the future you need to prosecute. That’s the only way to make sure that people don’t do it. That’s what prosecution is about: deterrence. When I see a picture of president Obama signing an executive order purportedly outlawing torture it’s a great picture. But of course that could be a different president four years from now reversing that order,” Ratner said.
Senator Leahy has come out against using the commission for criminal prosecutions. His stance on immunity for those who participate with the commission is not yet clear.
Matt Renner is an editor and Washington reporter for Truthout. He can be reached at Matt@truthout.org.
GOP Senator Would Support
Probe of ‘Shocking’ Anti-terror Memos
The Raw Story
(March 5, 2009) — Sen. Arlen Specter (R-PA) said he was opposed to any Truth Commission tasked with investigating Bush administration abuses, but that he could support criminal investigations into political appointees who authored the controversial OLC memos.
Speaking at Sen. Patrick Leahy’s (D-VT) Wednesday hearing on exploring the possibilities of setting up a nonpartisan Truth Commission, Specter, a moderate in his party who has supported past Senate inquiries into polices of the Bush administration, said:
“I would not mind looking backward if there’s reason to do so. If we have evidence of torture – go after it. If there’s reason to believe that these Justice Department officials have knowingly given the president cover for practices they know not to be right or sound – go after them. Some of the [OLC] opinions are more than startling, they’re shocking. If [OLC counsel] did that knowingly…it sounds to me that it may fall within criminal conduct.
Specter said he supported the Justice Department pursuing an investigation into the writing of the memos.
“They’re not going to pull any punches,” Specter said of a Justice investigation.
A key aspect still unresolved of Leahy’s proposal to set up an independent ‘Truth Commission’ with the task of examining wrongdoing by the Bush administration, is whether immunity will be offered to those who testify, and if so, what kind of immunity.
Senate Judiciary Committee Chairman Leahy’s hearing on the feasibility of setting up a nonpartisan ‘commission of inquiry’ into national security abuses over the last eight years met with strong support from a variety of sectors – civil libertarians, some corners of the military and human rights advocates.
In opening the day’s hearing before a half-full chamber room that included a dozen Guantanamo Bay protestors wearing orange prison jumpsuits, Leahy strove to create a bipartisan atmosphere.
Leahy said the commission could be imbued with subpoena powers and even the power to grant immunity to those who agree to testify. But he also warned that the commission would not rule out criminal prosecutions for witnesses who perjure themselves.
“This is a time when conservatives, liberals, Republicans and Democrats should be setting aside labels to come together foremost as Americans,” Leahy said. “We shouldn’t be afraid to look at what we’ve done and hold ourselves accountable as we do other nations when they make mistakes. Today is another opportunity to come forward and find the facts and join all of us, Republicans and Democrats, to develop a process to understand what went wrong and then to learn from it.”
But there is also significant opposition from Leahy’s Republican colleagues on the committee who contested that Congress had no business delegating responsibility to investigate Bush abuses and that no matter how ‘nonpartisan’ in name the commission was, it would still become a vehicle for Democrats to launch criminal probes into Republicans.
“The idea of creating an independent, and I’m not sure how independent it would actually be, unaccountable Truth Commission, is a bad idea with all due respect,” said Sen. John Cornyn (R-TX), a member of the Judiciary Committee. “The suggestion that this can be delved into somehow in a nonpartisan fashion asks us to suspend our powers of disbelief.”
Two of Leahy’s fellow Democrats on the Judiciary Committee gave support to the Truth Commission, though from their comments, they seem to be more interested in criminal prosecutions for high-profile Bush appointees than Leahy.
“There can be no doubt that we must fully understand the mistakes of the past to address them and to prevent them occurring in the future,” said Sen. Russ Feingold (D-WI). “Your proposal is aimed at finding the truth, not settling the score. I think a truth commission as the chairman has proposed is the best way to get the story out to the American people.”
Feingold said immunity for low-level participants of the Bush administration needed to be explored but added any Truth Commission should tread carefully in granting immunity as “there may be some cases that should be prosecuted.”
He also said that Congress should only task the commission with fact-finding and not with making any recommendations. The commission should be comprised of investigative professionals rather than partisan policymakers Feingold said.
“It is distinctly in the public interest for this information to come out,” said Sen. Sheldon Whitehouse (D-RI), adding that some conduct of Bush appointees may have been so “abhorrent” as to merit criminal investigations.
Cornyn said that any investigation into the interrogation methods of the CIA, would likely result in a more timid, agency, fearful of retroactive discipline, that would become reluctant to vigorously pursue intelligence gathering.
Frederick Schwartz, chief legal counsel of the Brennan Center for Justice and a witness in support of the Truth Commission, said he didn’t personally believe that CIA operatives, who engaged in questionable interrogation practices such as water boarding, should be criminally prosecuted or brought before the Truth Commission.
“I think they acted in good faith because they had legal opinions [backing them up], said Schwartz, referencing the recently made public Office of Legal Counsel memos that authorized radical and questionable executive powers.
Thomas Pickering, a former U.S. ambassador, testified in support of the commission, noting how it would improve American standing abroad with foreign allies and also take away propaganda power from terrorists who have used the treatment of prisoners in Guantanamo Bay and Abu Ghraib as a recruitment tool.
“We must as a country take stock of where we have been and determine what is and what is not acceptable and what we will never do again,” Pickering said. “We ought to acknowledge the mistakes that were made.”
Pickering added that the commission should not have the power to grant blanket immunity or full immunity.
Speaking against the idea of the commission, Jeremy Rabkin, a law professor at George Mason University, objected to the statements made by some far-left sectors of society that compare President Bush and his cabinet to “notorious war criminals of foreign countries.”
Rather than improving American standing abroad, Rabkin said a Truth Commission would actually legitimize these views in other countries. Countries that have held Truth Commissions in the past, such as South Africa and Chile, had to go that route because their countries were to divided and peace to fragile to handle any kind of criminal prosecution.
“Oh yes, that is what is done with war criminals when you can’t prosecute them,” Rabkin said. “I think this will be said as ratifying the background view. If people think there should be prosecutions, there can be prosecutions.”
Leahy warned that if Republicans chose to not take part in his “nonpartisan fact-finding commission,” then calls from more strident members of his party for criminal prosecutions of Bush administration appointees would only become louder and they would become more empowered in the eyes of the public, which according to a recent Gallup poll, two thirds of Americans support some type of inquiry into Bush administration abuses.
“If criminal conduct occurred, this senator wants to know about it,” Leahy said. “I’m trying to get the ability to find out if criminal conduct occurred so it won’t happen again. If crimes occurred, I don’t think they should be swept under the rug.”
The full formal testimony of Wednesday’s witnesses can be read here.
Leahy tells Maddow some Republicans back legal action
During an appearance on MSNBC’s Rachel Maddow Show, Leahy said that some Republicans might back legal action against members of the Bush White House.
Leahy told Maddow that the recently released Bush anti-terror documents “makes me think of some of the ads I‘ve seen for the Frost/Nixon tapes where the actor playing President Nixon says, ‘It‘s not against the law when the president does it.’ Well, nobody‘s above the law in this country.'”
Politico’s Andy Barr writes, “Rather than prosecuting Bush officials, the Democrat has proposed the creation of a ‘truth commission’ to investigate alleged wrongdoings in the waging of the war on terror. Leahy’s proposed commission would have subpoena power, but would not press criminal charges against former White House officials.”
“Now, interestingly enough, some of the Republicans, in their arguments this morning, were saying, maybe prosecution is the only way you‘re going to really find out,” Leahy said. “Something has been done wrong and you should have prosecution. My feeling is, be careful what you wish for. That may be what you get.”
Maddow responded, “We do have a very interesting sort of convergence of right and left on the relationship of your commission idea to prosecutions. We got Nancy Pelosi and Russ Feingold and Sheldon Whitehouse and Michael Ratner from the Center for Constitutional Rights, all arguing they wouldn‘t want any offers of immunity from the commission to preclude prosecutions.”
“But today, as you said, Republicans arguing against the commission, Arlen Specter, David Rivkin, former Justice Department official, both suggesting that the commission might interfere with the Justice Department‘s turf in prosecuting,” Maddow continued. “Are they…”
Leahy interjected, “That‘s why I say ‘be careful what you wish for’ because we already have a prosecutor looking into this. If prosecution can find all the answers, that‘s fine. But I‘m just worried that it might not. That‘s why I‘m trying to find this middle ground.”
But Leahy warned Republicans, “If we cannot get the kind of bipartisan support needed for a commission to get all the facts out, then it‘s going to fall back on prosecution. But I am not willing to just ignore what happened. Some have said turn the page. I say, well, let‘s read the page first before you turn it.”
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