McClatchy Newspapers

McClatchy Newspapers

WASHINGTON — In the waning days of the Bush administration, the Justice Department renounced some of its own sweeping legal justifications, which were enacted after the 9/11 attacks, for spying on Americans and for harsh interrogations of terror suspects.

In a memo written five days before President Barack Obama took office, Steven Bradbury, the then-principal deputy assistant attorney general, warned that a series of opinions issued secretly by the Justice Department’s Office of Legal Counsel “should not be treated as authoritative for any purpose.”

Bradbury said he wrote the 11-page document to confirm “certain propositions” in memos issued by the Justice Department from 2001 to 2003 “do not reflect the current views of this office.”

The memo, unusual for its critique of a current administration’s legal opinions, was released by the Justice Department Monday, along with eight other previously secret opinions. The disclosures came on the same day the Obama administration confirmed CIA officials had previously destroyed 92 tapes of terror suspects, a higher number than previously known. The tapes included interrogations that critics think constituted illegal torture.

In January, the American Civil Liberties Union urged the Obama administration to release dozens of secret Bush Justice Department memos. For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government’s deliberative process.

Critics see the release of the documents as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various antiterrorism measures, including the use of waterboarding, an interrogation technique that simulates drowning.

Attorney General Eric Holder said Monday he planned to release as many of the Bush administration’s OLC memos and opinions as possible “while still protecting national security information and ensuring robust internal executive branch debate and decision-making.”

“Americans deserve a government that operates with transparency and openness,” he said.

The memos and opinions released Monday portray an administration scrambling to determine what it could and could not do in the name of the war on terror.

In the early days after the attacks, the Justice Department gave the president broad authority.

In an Oct. 23, 2001, memo, for example, Justice Department lawyers John Yoo and Robert Delahunty assert the Fourth Amendment’s prohibition of unreasonable search and seizure couldn’t be used to restrain domestic military operations.

Jameel Jaffer, the director of the ACLU’s National Security Project, said the memo, which the ACLU had been seeking for years, was among the most revelatory of the batch of documents released on Monday. He surmised it might’ve provided justification for Bush’s warrantless surveillance program.

“It essentially says that war is a blank check for the president, not only on foreign battlefields, but also inside the United States,” he said. “In some ways that memo also succinctly summarizes the administration’s national security policies more generally.”

However, Bradbury warns administration officials in an Oct. 6, 2008, follow-up memo that “caution should be exercised before relying in any respect” on the assertions.

Although Bradbury noted the “extraordinary — indeed, we hope, a unique — period in the history of the nation,” he concluded several legal arguments in the memo were “either incorrect or highly questionable” and “should not be treated as authoritative for any purpose.”