9/11-era memos show lack of respect for Constitution

9/11-era memos show lack of respect for Constitution

The release of nine memos drafted by Bush administration lawyers in the aftermath of 9/11 provide a cautionary tale of how fear can motivate bureaucrats to advocate the deconstruction of a constitutional republic.

The snapshot provided by the memos is that of a band of Justice Department lawyers who were willing, if not eager, to create an imperial presidency that was not answerable to the Congress, the judiciary or the Constitution, at least not as most people understand the Constitution.

And such a harsh assessment need not be attributed to carping Democrats or wild-eyed civil libertarians. In a memorandum dated five days before President George W. Bush left office, Steven G. Bradbury, head of the president’s Office of Legal Counsel, issued a memo repudiating the earlier memos, some of which had been drafted within weeks of the World Trade Center attacks. Bradbury wrote that the memos had not been relied upon since 2003, but it was important to acknowledge the “doubtful nature of these propositions.”

Butt out, Congress

One of those propositions was that Congress had no say in national-security matters. The president could deploy troops at home to conduct raids and fight terrorists; the president could wiretap without warrant; the Fourth Amendment protections against unwarranted search and seizure didn’t apply in wartime; and the president could unilaterally abrogate treaties.

One memo, dated Oct. 23, 2001, was written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It overturned the long-standing Posse Comitatus Act, which bans the military from law-enforcement operations, on the grounds that the military would be functioning in the interest of national security, not law enforcement, if it conducted raids, seized evidence and tracked down terrorists. The memo also advised the president that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”

In another memo, lawyers suggested that people held by the United States could be turned over to nations known to torture suspects, as long as there was no implicit or explicit agreement that they were to be tortured. There would be no legal liability, the administration was assured, “even if the foreign country receiving the detainee does torture him.”

The administration’s lawyers found little that the president couldn’t do if he believed it was necessary. It’s safe to assume that in most cases they were telling President Bush and Vice President Dick Cheney what they wanted to hear, and the lawyers were always prepared to find a way of saying it.

Redefining ‘force’

Several of the memos posit that since the law has long recognized the legitimacy of deadly force in the interest of self protection, then any lesser uses of force — such as eavesdropping without going through the trouble of getting a warrant — was permissible.

The logic that a president who takes only one oath — “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States” — could ignore the Constitution on the basis of a lawyer’s memo is mind-boggling.

Granted, the time following Sept. 11, 2001, was a time of uncertainty and fear, but the readiness of Justice Department lawyers to trade on that fear in ways that are, well, un-American, are more frightening than any threat posed by Osama bin Laden.

Not among the memos that were released are those widely believed to have approved the use of harsh interrogation techniques by the CIA or those specifically authorizing the National Security Agency’s program to surveillance of certain Americans without warrants.

But those that were released are enough to spark a public discussion of how this nation can react to a threat — internal or external — without sacrificing the core principles handed down to us from the founders.